THIRD SECTION
DECISION
Application no. 6192/09
Jezdimir DIMITRIJEVIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 22 November 2016 as a Committee composed of:
Helena Jäderblom, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 September 2009,
Having regard to the declaration submitted by the respondent Government on 3 March 2016 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 AND PROCEDURE
The applicant, Mr Jezdimir Dimitrijević, is a Serbian national, who was born in 1946 and lives in Leskovac. He was represented before the Court by Mr S. Dimitrijević, his son.
The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was recently substituted by their current Agent, Ms N. Plavšić.
On 26 August 1999, the applicant obtained a final judgment against a socially/state-owned company rendered in his favour. On 26 April 2000 the Leskovac Commercial Court issued an enforcement order related to this judgment. The judgment remains unenforced.
Relying on Articles 6 and 13 of the Convention, as well as Article 1 of Protocol No. 1 to the Convention the applicant complained about the failure by the national authorities to enforce the judgment of 26 August 1999.
The application had been communicated to the Government.
THE LAW
After the failure of attempts to reach a friendly settlement, by a letter of 3 March 2016 the Government informed the Court that they proposed to make unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration, signed by the Government’s Agent, provided as follows:
“the Government of the Republic of Serbia is ready to accept that there had been a violation of the applicant’s rights under Article 6, 13 and Protocol No. 1 of the Convention and offer to pay to Mr Jezdimir Dimitrijević, the amount of EUR 1,800 [one thousand eight hundred euro] less any amounts which may have already been paid in that regard at the domestic level in order to cover any non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable...
This sum shall be payable within three months from the date of delivery of the decision of the Court...
..further ... the Government offer to pay, from their own funds, to the applicant the sums awarded in the domestic decision P 328/99 adopted by the Commercial Court in Leskovac on 26 August 1999, less any amounts which may have already been paid on the basis of the said decision, plus costs of enforcement proceedings.
These payments 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. ”
In a submission dated 28 April 2016, the applicant informed the Court 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) enables the Court in particular 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 applications”.
It also recalls that in certain circumstances, it may strike out an applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
To this end, the Court will examine carefully the Government’s declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [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).
The Court has established in a number of cases, including those brought against Serbia, its practice concerning complaints about the non‑enforcement of final domestic decision rendered against socially/State‑owned companies (see, for example, R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, 13 January 2009; Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, 31 May 2011; Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011; and Stošić v. Serbia, no. 64931/1, 1 October 2013).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
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 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).
Further, the Court interprets the Government’s declaration as meaning that in the event of failure to settle within the three-month period indicated in this declaration, 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.
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).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 15 December 2016.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy