SECOND SECTION
DECISION
Application no. 32311/07
Ivan BOŽJAK
against Serbia
The European Court of Human Rights (Second Section), sitting on 1 October 2013 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Dragoljub Popović,
Helen Keller, judges,
and Seçkin Erel, Acting Deputy Section Registrar,
Having regard to the above application lodged on 23 June 2007,
Having regard to the declaration submitted by the respondent Government on 1 July 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS
The applicant, Mr Ivan Božjak, is a Serbian national, who was born in 1944 and lives in Zrenjanin.
The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
The facts of the case, as submitted by the parties, may be summarised as follows:
On 8 January 1985 the applicant’s uncle drafted a will before the Municipal Court (Opštinski sud) in Zrenjanin, whereby he revoked his earlier will and disposed of his property equally between the applicant and his brother.
On 15 January 1985 the applicant’s uncle died.
On 24 January 1985 the Municipal Court initiated the inheritance proceedings.
On 10 November 1986 the Municipal Court suspended the inheritance proceedings and referred M.S., another private person, to institute civil proceedings against the applicant and seek the annulment of the will. On 20 September 2000 M.S. filed a civil claim, which was finally rejected by the domestic courts by 15 March 2001.
On 6 September 2002 the Municipal Court resumed the inheritance proceedings and issued a decision declaring the applicant and his brother their uncle’s sole heirs. On 20 October 2004 the District Court (Okružni sud) in Zrenjanin quashed the Municipal Court decision and ordered a retrial.
On 18 January 2005 the Municipal Court suspended the inheritance proceedings pending the outcome of a separate set of civil proceedings for the annulment of the will instituted by other private persons on 26 January 1987.
It would appear that there have been no developments thereafter.
THE LAW
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the inheritance proceedings. He further complained under Article 1 of Protocol No. 1 and Article 13 of the Convention about the violation of his property rights and a lack of an effective domestic remedy in that respect.
1. The part of the application concerning the extensive length of the inheritance proceedings was communicated to the Government.
After the failure of attempts to reach a friendly settlement, by a letter of 1 July 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant. The declaration provided as follows:
“I declare that the Government of the Republic of Serbia is ready to accept that there had been a violation of the applicant’s right under Article 6 paragraph 1 of the Convention and offer to pay to the applicant, Mr Ivan Božjak, the amount of EUR 3,300 (three thousand three hundred euros) in respect of the application registered under no. 32311/07 before the European Court of Human Rights.
This sum, which covers any and all non-pecuniary damage as well as any and all costs, shall be paid in dinar counter-value, free of any taxes that may be applicable, and to an account named by the applicant. This sum shall be payable within three months from the date of delivery of the decision of the Court. This payment will constitute the final resolution of the case.
The Government regret the occurrence of the actions which have led to the bringing of the present application. ”
By letters of 27 July and 9 August 2011, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) in particular, enables the Court to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Serbia, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Nemet v. Serbia, no. 22543/05, §§ 17-18, 8 December 2009; and Šorgić v. Serbia, no. 34973/06, 3 November 2011).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, which can be considered reasonable in comparison with the Court’s awards in similar cases, when account is taken of the fact that the proceedings have been pending within the Court’s competence ratione temporis for over nine years (Serbia having ratified the Convention on 3 March 2004), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Turning to the nature of the proposed redress, the Court interprets the Government’s declaration as meaning that the compensation proposed is to be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention and that, in the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that the respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). Accordingly, this part of the application should be struck out of the list of cases.
It is to be noted that this decision is without prejudice to the merits of the applicant’s domestic claim or, indeed, his ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
2. Under Article 1 of Protocol No. 1 and Article 13 the Convention, the applicant also complained about the breach of his property rights and a lack of an effective domestic remedy in that respect.
Quite apart from the fact that the impugned inheritance proceedings are still pending and that the applicant has not yet been declared the heir of the property at issue, he has not instituted any proceedings at the domestic level for compensation of the damage he allegedly sustained. The Court therefore finds that the complaints about the violation of the applicant’s property rights and the lack of an effective domestic remedy in that respect are inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the part of the application concerning the length of the inheritance proceedings out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Seçkin Erel Paulo Pinto de Albuquerque
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy