SECOND SECTION
Applications nos. 19971/07 and 37364/10
Dragutin ĆIROVIĆ against Serbia
and Milivoje BOŠKOĆEVIĆ against Serbia
lodged on 14 April 2007 and 8 June 2010 respectively
STATEMENT OF FACTS
THE FACTS
1. The applicants, Mr Dragutin Ćirović (“the first applicant”) and Mr Milivoje Boškoćević (“the second applicant”), are Serbian nationals who were respectively born in 1935 and 1952 and live in Majdan and Štrpce in Kosovo[1].
A. The circumstances of case no. 19971/07
2. The facts of the case, as submitted by the first applicant, may be summarised as follows.
1. The trespass proceedings
3. On an unspecified date, the applicant filed a trespass claim (tužba zbog smetanja poseda) against “Srbija Šume” (Javno preduzeće Srbija Šume ŠG Kragujevac – ŠU Gornji Milanovac), a statutory corporation.
4. After several remittals, by 14 June 2006 the Municipal Court (Opštinski sud) in Gornji Milanovac (hereinafter “the Municipal Court”) accepted all of the applicant’s requests concerning trespassing and on 24 November 2006 (P.no. 695/06) ordered “Srbija Šume” (hereinafter “the debtor”) to pay the applicant’s legal costs of RSD 86,400 within 15 days from the date of the receipt of that decision.
5. On 17 January 2007 the District Court (Okružni sud) in Čačak (hereinafter “the District Court”; Gž.no.104/07) upheld the decision of 24 November 2006. The decision of 14 June 2006 became final in the meantime, as no party had appealed against it.
2. The enforcement proceedings
6. On 26 February 2007 the applicant filed an enforcement request. In particular, he requested the Municipal Court to order the transfer of the sum awarded on account of costs, with the statutory interest accrued as of 24 November 2006, from the bank account of the debtor to his bank account, as well as the payment in cash of the enforcement costs incurred.
7. On the same date, the Municipal Court issued an enforcement order to this effect (I. no. 220/07).
8. On 14 March 2007 the Central Bank’s unit in Kragujevac refused the enforcement and transmitted the file to the Municipal Court to obtain the debtor’s bank account details (tekući račun), employer registration/identification number (matični broj) and taxpayer identification number (PIB dužnika).
9. On 19 March 2007 the applicant informed the Municipal Court that he was not going to search for the requested data, which should, in any event, have been known to the State’s authorities given the debtor’s status of a statutory corporation. He further urged the said court to expedite the enforcement proceedings.
10. On 28 March and 31 May 2007 respectively, the Municipal Court ordered the applicant to amend his enforcement request in accordance with the Central Bank’s instructions within three days from the respective dates, as well as to provide a power of attorney.
11. On 6 August 2007 the applicant sought urgent enforcement pursuant to Articles 199 and 200 of the Enforcement Procedure Act (see under C.1 below).
12. On 10 September 2007 the Municipal Court terminated the enforcement proceedings (obustavio izvršenje) pending the submission of the applicant’s amended request for enforcement.
13. On 19 September 2007 the applicant appealed against that decision.
14. On 31 October 2007 the District Court quashed the decision finding that the Municipal Court had made an error in law.
15. On 26 November 2007 the Municipal Court itself provided the Central Bank with the data requested on 14 March 2007.
16. It would appear that on 27 November 2007 the enforcement sum was not transferred to the applicant’s bank account, but to a new bank account opened in the Postal Bank (Poštanska štedionica) for this particular occasion. It would also appear that the Postal Bank withheld 1% of the said amount on account of its service charge (see C.4 below).
17. On 14 January 2008 the applicant claimed the costs for his submissions of 19 March 2007 and 6 August 2008 and the appeal of 19 September 2007, with the relevant court fees thereto.
18. On an unspecified date thereafter the Postal Bank informed the applicant about the transfer of 27 November 2007 and the deduction of the service charge, without specifying the deducted amount.
19. On 25 March 2008 the applicant requested the difference between the sum ordered to be paid by the Municipal Court and that paid by the bank (RSD 74,56/ approximately 1 euro), as well as the payment of enforcement costs incurred retrospectively, both with statutory interest.
20. On 4 April 2008 the Municipal Court accepted partly the applicant’s request for enforcement costs (RSD 8,378 (approximately EUR 102)) and rejected the remainder of his request, stating that the enforcement order had been fully executed.
21. Following the applicant’s appeal of 11 April 2008, on 4 June 2008 the District Court quashed the decision of 4 April 2008. In particular, it stated that no service charge, withheld by the Postal Bank, should have been imposed on the applicant.
22. On 16 July 2008 the Municipal Court continued the enforcement proceedings in respect of the payment of RSD 19,756 (approximately EUR 251) on account of enforcement costs, as well as the above-mentioned difference in the payment of the main debt, with statutory interest as of 27 November 2007. The enforcement court rejected the request for the costs incurred in regard to the submissions of 19 March and 6 August 2008 as unnecessary, given that the applicant had contributed himself to the protracted enforcement, failing to submit in a timely manner data requested by the Central Bank.
23. On 11 September 2008 the District Court upheld the decision of 16 July 2008, finding the Municipal Court’s reasoning to be clear and compelling.
24. It would appear that on 1 October 2008 the Postal Bank paid RSD 19,840.87 on the newly opened operating account and informed the applicant about it on 2 November 2008.
25. On 17 November 2008 the applicant filed a motion (zahtev za otklanjanje nepravilnosti; see under C.3 below, Article 58) because the enforcement amount had again been transferred to the Postal Bank, which kept 1% for its own service, and requested the Municipal Court to: (i) declare this practice unlawful and order the competent banks to desist therefrom; (ii) continue enforcement in respect of unpaid amounts; and (iii) award the legal costs in respect of that particular complaint and any further enforcement costs.
26. On 19 November and 18 December 2008 the Central Bank and Postal Bank, respectively, informed the Municipal Court about their practice (see under C.4 below).
27. On 16 January 2009 the Municipal Court ordered the applicant to specify the amount allegedly retained by the Postal Bank. He was warned that, should he fail to do so, the court would terminate the enforcement proceedings.
28. On 26 February 2009 the Municipal Court: (i) refused to find the impugned practice unlawful; (ii) decided to continue with the further enforcement of the decisions of 26 February 2006 and 16 July 2008 respectively, given that the service charge should not have been taken from the applicant; and (iii) accepted partially the requested enforcement costs, given the applicant’s partial success with his complaint of 17 November 2008.
29. On 9 March 2009 the applicant appealed against the administrative practice, as well as the costs awarded.
30. On 8 April 2009 the District Court rejected the applicant’s appeal.
3. The debtor’s status
31. The debtor in the present case is a statutory corporation entrusted with silviculture and forestry. It was founded by a decision of the National Assembly of the Republic of Serbia (no. 101) dated 19 July 1991. It was incorporated on 29 July 1991 and registered at the Corporations’ Register on 10 March 2005. The main organs of the corporation are the Managing Board, Managing Director and Supervisory Board. It would appear that the Government has the power to appoint and dismiss the Managing Director, six out of eleven members of the Managing Board and three out of five members of the Supervisory Board.
4. Other relevant facts
32. Since 1 March 2003 all financial transactions in Serbia should be operated through the bank accounts transfers, not cash.
B. The circumstances of case no. 37364/10
33. The facts, as submitted by the second applicant, may be summarised as follows.
1. The civil and subsequent enforcement proceedings
34. The applicant has been employed since 1993 as a driver with a statutory corporation called “National Park of Šar planina” (Javno preduzeće “Nacionalni park Šar planina”).
35. On 24 January 2000 and 17 July 2003 respectively, the Serbian Government adopted two decisions whereby, inter alia, all of its employees who resided and worked in Kosovo were to be paid double salaries (this included the second applicant).
36. On 24 February 2005, 11 January 2007, 27 December 2007 and 25 December 2008, respectively, the Government amended the amount of remuneration.
37. On 30 May 2005 the second applicant filed a civil claim against his employer and the Serbian Ministry of Science and Environmental Protection (hereinafter “the Ministry”). He sought payment of the difference between the salary received and the one granted by the Government, as well as that both respondents be held jointly liable and continue paying him an increased salary as provided by the above-mentioned Government decisions.
38. On 21 November 2007 the Municipal Court (Opštinski sud) in Uroševac (hereinafter “the Municipal Court”) ruled in favour of the applicant and ordered his employer and the Ministry:
i. to pay him jointly 385,444 Serbian dinars (“RSD”; at the relevant time approximately 4,800 Euros (“EUR”)) in respect of the difference between the salaries received from 1 June 2006 to 30 September 2007 and those granted by the Government, plus statutory interest accrued in the meantime on a monthly basis;
ii. to continue paying increased salaries as long there was a legal basis therefor; and
iii. to pay him jointly RSD 72,068 (approximately EUR 900) for his legal costs.
39. The applicant’s employer and the Ministry appealed against that judgment.
40. On 21 January 2009 the District Court (Okružni sud) in Priština partly upheld and partly reversed that judgment. In particular, it upheld the ruling under (i) and (iii) solely in respect of the applicant’s employer (hereinafter “the debtor”) as severally liable, and rejected the remainder. In doing so, the District Court held, inter alia, that the Government could not be held responsible for the impugned debt, given that their liability is limited to the approval of the corporation’s annual business plans, as well as financing of the programmes concerning development and protection of the national park rather than the financing of employees’ salaries.
41. On 12 May 2009 the Municipal Court issued an enforcement order in respect of the judgment which had become final.
42. It would appear that during an unspecified period the debtor’s bank account was blocked by the Central Bank of Serbia due to other pending enforcement orders. It would also appear that the employees had not been receiving their salaries as of July 2009.
43. It would appear that all the debtors’ employees received the offer from the debtor to sign particular (mutual) agreements, binding themselves to withdraw their respective enforcement requests, while the debtor was to pay the outstanding debts after its account had been unblocked, and, at the latest, within 15 days from the date it had received the necessary funds from the Ministry’s Environmental Protection Fund.
44. On 20 May 2010, the applicant complained to the managing organs of the debtor, stating that he was being forced to sign the above-mentioned agreement in order to receive the outstanding salaries due from July 2009. He claimed that he would never have signed such an agreement if he had not been in such a desperate financial situation caused by the debtor. He lastly stated that, if he signed the offer, this waiver of his rights would be against his will.
45. On 21 May 2010 the applicant concluded an agreement with the debtor as regards the execution of the judgment of 21 January 2009 as provided by the debtor’s offer explained above.
46. It would appear that the enforcement proceedings are pending to date.
2. Other relevant facts as regards the proceedings before the Court in Strasbourg
47. On 8 June 2010 the applicant lodged his application with the Court.
48. On 9 July 2010 the applicant was given notice by the debtor’s Director that he had been breaching employment responsibilities and was thus fulfilling the conditions to be dismissed. In particular, he was reproached, inter alia, “for complaining to the Court in regard to the corporation’s business, analysing problems and looking for the culprit among the members of the Government, and he did so without consulting the Director. Moreover, he also refused to hand out the copy of the documents which he had submitted to the Court, claiming his privacy.” The applicant was warned that, should he continue in the same manner, he would be dismissed without further notice or face disciplinary proceedings.
3. The debtor’s status
49. The debtor in the present case is a statutory corporation founded by Article 23 of the National Parks Act (Zakon o nacionalnim parkovima, enacted on 26 May 1993 and published in the Official Gazette of the Republic of Serbia (“OG RS”) nos. 39/93, 44/93, 53/93, 67/93, 48/94 and 101/05[2]) to administer the Šar planina national park. According to the same Act (Article 23 § 2), the debtor’s assets belong to the State. The debtor cannot be subject to insolvency proceedings (Article 8 § 4). It would appear that the Government has the power to appoint and dismiss the Managing Director and the members of the Managing and Supervisory Board (Article 17). The debtor’s employees are represented in these boards in a manner prescribed by the corporation’s articles of association.
50. It would appear that the bank current account of the debtor has been blocked since May 2009.
C. Relevant domestic law and practice
1. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04)
51. Article 5 § 1 of this Act provided that all enforcement proceedings were to be conducted urgently.
52. Article 43 regulated the costs of enforcement proceedings. It provided, inter alia, that the debtor was obliged to reimburse the creditor’s necessary enforcement costs if the latter had so requested. The court was to decide about enforcement costs and to order the enforcement of its decisions in this regard at a party’s request in the course of the pending enforcement proceedings.
53. Pursuant to Article 49 § 1, an enforcement request should specify the creditor and the debtor, the enforcement title (izvršna ili verodostojna isprava), obligations of the debtor, the means and subject of enforcement, as well as any other data necessary for enforcement.
54. Articles 196-204 set out details as regards enforcement by means of a bank transfer. In particular, Article 199 provided that the enforcement order should be forwarded to the Central Bank which should then instruct the debtor’s bank to proceed with a wire transfer or a cash payment, as appropriate. Pursuant to Article 200, the debtor’s bank should provide the transfer of the designated funds from the debtor to the applicant’s account the same day on which it received the transfer instruction from the Central Bank.
2. The Enforcement Procedure Act 2011 (Zakon o izvršnom postupku; published in OG RS no. 31/11)
55. This Act became applicable as of 17 September 2011 (except its provisions on the court’s bailiffs), thereby repealing the Enforcement Procedure Act 2004 as of that date. In accordance with Article 358, all enforcement proceedings instituted prior to that date are to be concluded pursuant to this Act.
56. Articles 6 and 34, in the relevant part, correspond to Articles 5 and 43 of the 2004 Act.
57. In addition to the elements specified by Article 49 § 1 of the Act 2004, Article 35 of this Act requires that an enforcement request in commercial matters where the debtor is, inter alia, a legal entity, shall also specify the creditor’s and debtor’s bank account details, as well as the debtor’s registration and taxpayer identification number.
58. Articles 183-190 contain more detailed provisions as regards enforcement by means of a bank account transfer. Article 185 paragraphs 1 and 3 and Article 186, in the relevant part, correspond to Articles 199 and 200 of the 2004 Act. In addition to the elements requested by Article 35 of this Act, Article 184 requests from a creditor to specify, where the debtor is the State, autonomous province or units of local self-governments, the relevant budgetary item’s bank account and the budget’s user which had caused the debts. Should the debtor fail to provide the details requested, a creditor may file an enforcement request without them with proof that they had been requested and the enforcement court/bailiff will request the Central Bank to provide it with them.
3. The Financial Transactions Act (Zakon o platnom prometu; published in Official Gazzette of the Federal Republic of Yugoslavia (“OG FRY”) nos. 3/02 and 5/03, and OG RS nos. 43/04 and 62/06)
59. Articles 47-49 and 57, inter alia, regulate technical details as regards the process of enforcement by means of a bank transfer. They do not, however, specifically provide for an obligation on the part of the Central Bank to inform the enforcement court about the current status of the transfer in question.
4. The Statutory Interest Act (Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01)
60. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement (which includes awards granted by final court judgments).
61. Article 2 states that such interest shall be calculated on the basis of the official retail price index (mesečna stopa rasta cena na malo) plus another 0.5% monthly (mesečna fiksna stopa).
5. The contract concluded between the Central Bank and the Postal Bank
62. On 3 February 2003[3] the Central Bank, the Serbian Post Office (“PPT Saobraćaj Srbija”), a statutory corporation, and the Postal Bank concluded a contract on the implementation of coercively enforced payments to individuals (Ugovor od obavljanu poslova isplate fizičkim licima sredstava koja su prinudno naplaćena). It would appear that, if the creditor does not have a bank account, the debtor’s bank should transfer the designated money to a new/special current bank account opened for that purpose in the Postal Bank. The Postal Bank shall be entitled to withhold 1% of this amount on account of its service charge.
6. The status of statutory corporations (pravni položaj javnih preduzeća)
63. The current legal status of statutory companies in Serbia is primarily defined by: (i) the Statutory Corporations Act (Zakon o javnim preduzećima i obavljanju delatnosti od opšteg interesa, published in OG RS nos. 25/00, 107/02, 108/02 and 123/07); (ii) the Public Property Act (cited above); (iii) the State Administration Act (Zakon o državnoj upravi, published in OG RS nos. 79/05, 101/07 and 95/10); (iv) the Communal Services Act (Zakon o komunalnim delatnostima, published in OG RS nos. 16/97 and 42/98); (v) the Corporations Act 1996 (Zakon o preduzećima; published in OG FRY nos. 29/96, 33/96, 29/97, 59/98, 74/99, 9/01 and 36/02); (vi) the Corporations Act 2004 (Zakon o privrednim društvima; published in OG RS no. 125/04); (vii) the Corporations Act 2011 (Zakon o privrednim društvima; published in OG RS nos. 36/11 and 99/11); and (viii) the Insolvency Act 2009 (published in OG RS no. 104/09); and, exceptionally, (viii) Articles 6 and 33 § 2 of the Insolvency Procedure Act 2004[4] (Zakon o stečajnom postupku, published in OG RS nos. 84/04 and 85/05).
64. Based on this legislation, statutory corporations are independent legal entities distinct from their founders, which could be the State’s central or local governments (hereinafter “the founder/s”). The aims of the incorporation and work of a statutory corporation are, inter alia, to provide public interest services[5] and to gain profit.
65. The State-owned capital comprises the capital initially or subsequently invested by the State, as well as right to use State-owned assets and rights. Statutory organisations are liable for their commitments with all of their assets. The investors acquire the capital stocks/shares equivalent to the invested capital, while the latter turns into the corporation’s property.
66. Article 33 § 2 of the prior Insolvency Procedure Act 2004 provided that statutory corporations could be subject to regular insolvency proceedings, unless provided otherwise by law. The Insolvency Act 2009 does not contain any explicit provision on the insolvency proceedings in respect of statutory corporations. However, its Article 14 § 1 does provide that the insolvency proceedings shall not be conducted, inter alia, against legal entities which have been incorporated by the above-mentioned founders and were exclusively or mostly financed from the assigned public income or the founders’ budget. Article 14 § 3 further provides that the founders/owners of a legal entity which is exempted from the prospect of being subject to insolvency proceedings shall be held jointly liable, as its members/shareholders, for the debts (obaveze) of that legal entity.
67. The statutory corporations’ founders have the power to appoint and dismiss their Managing Director and the members of the Managing and Supervisory Boards, which are the main organs of these corporations. The companies’ employees are represented in the boards in a manner prescribed by the articles of association of the company. The decisions concerning, inter alia, the status, organisation of such companies, investments in other corporations, tariffs, general conditions for delivery of services and products, cannot be adopted without the founder’s prior approval. The founder also gives approval for the corporation’s annual business plan.
68. Finally, the Managing Board decides, with the necessary approval of the founder, about the profits, of which a portion should be transferred to the founder.
COMPLAINTS
Relying on Article 6 of the Convention and Article 1 of Protocol No. 1, the first applicant complains that the enforcement of the court’s decisions in his favour has been protracted and in breach of domestic law. He further complains under Article 13 of the Convention that he has had no effective domestic remedy at his disposal in this regard.
Relying on Articles 6, 17 and 18 of the Convention, the second applicant complains about the non-enforcement of the final domestic judgment in his favour. In this respect, he claims that the State is liable for the debts of statutory corporations. Lastly, he complains about being intimidated by his employer in order to withdraw his case pending before the Court.
QUESTIONS
As regards both applicants
1. To what extent are the acts and the omissions of which the applicants complain in the present cases imputable to the State, for the purposes of Article 34 of the Convention? Namely, should the liability of the respondent State in the present cases engage the same sort of responsibility as in cases where the debtors are private companies or where they are State/socially-owned companies? In that respect, the Government are invited to comment on and document whether the debtors in the present cases are effectively controlled or managed by the State and, if so, to what extent (see, mutatis mutandis, Mykhaylenky and Others v. Ukraine, nos. 35091/02 et seq., ECHR 2004‑XII, and R. Kačapor and Others v. Serbia, nos. 2269/06 et seq., 15 January 2008), as well as whether they can be subject to insolvency proceedings (see, in particular, paragraphs 49 and 66 of “The Statement of Facts”).
2. Has there been a violation of Article 6 § 1 of the Convention? In particular, does the impugned non-enforcement/partial non-enforcement of the judgments/decisions rendered in the applicants’ favour amount to a violation of this provision (see, mutatis mutandis, Mykhaylenky and Others v. Ukraine, and R. Kačapor and Others v. Serbia, both cited above; see also, for example, Marčić and Others v. Serbia, no. 17556/05, 30 October 2007; Koltsov v. Russia, no. 41304/02, §§ 16 and 23, 24 February 2005, Petrushko v. Russia, no. 36494/02, §§ 18 and 25, 24 February 2005, and Apostol v. Georgia, no. 40765/02, § 60, ECHR 2006‑XIV)?
As regards the first applicant only
3. Has there been a violation of Article 1 of Protocol No. 1? In particular, was the manner in which the domestic courts’ decisions have been enforced was in breach of this provision?
4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 1 of Protocol No. 1 and Article 6 of the Convention, as required by Article 13 of the Convention?
As regards the second applicant only
5. Could an appeal provided for under Article 170 of the Serbian Constitution 2006 (ustavna žalba), in a case such as the applicant’s, be considered effective within the meaning of Article 35 § 1 of the Convention (see Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009, and, mutatis mutandis, Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011)?
The Government are invited to submit all relevant Constitutional Court case-law in this respect.
6. Should the Agreement of 21 May 2009 between the applicant and his employer be considered as a waiver of the right to a fair hearing? If so,
- what is its scope,
- was any such waiver made in an unequivocal manner (see, Zumtobel v. Austria, 21 September 1993, § 34, Series A no. 268‑A, and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263), and
- was it attended by minimum safeguards commensurate with its importance (see, mutatis mutandis, Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003)?
7. Has there been any hindrance by the State in the present case of the effective exercise of the applicant’s right of application, guaranteed by Article 34 of the Convention? In particular, should the director of the statutory corporation in question be considered a State agent?
[1] All reference to Kosovo, whether to the territory, institutions or population, in this judgment shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
[2] The National Parks Act (except Articles 6 and 7 and the description of the national parks’ surface) has been repealed by the Nature Protection Act (published in the OG RS, nos. 36/09, 88/10 and 91/10).
[3] With an annex of 25 March 2003.
[4] The Insolvency Act 2009, which entered into force on 24 December 2009, repealed the Insolvency Procedure Act 2004. However, according to Article 207 § 1 of the latter, the former Act is applicable to all insolvency proceedings which were brought before the court prior to 24 December 2009.
[5] The competent organ of the respondent State can also convey the authority of performing public interest services on other forms of corporations, a part of a corporation or an entrepreneur.
Full & Egal Universal Law Academy