SECOND SECTION
DECISION
Application no. 55155/07
Dragan GAVRILOVIĆ
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 5 December 2007,
Having regard to the declaration submitted by the respondent Government on 9 January 2013 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 Dragan Gavrilović, is a Serbian national, who was born in 1952 and lives in Čačak. He was represented before the Court by Mr Ž. Jeremić, a lawyer practising in Čačak.
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 31 August 1998 the applicant filed a civil claim against the National Lottery (“Narodna lutrija”) for failure to fulfil a contractual obligation.
On 31 March 2005 the Municipal Court (“Prvi opštinski sud”) in Belgrade ruled partly in the favour of the applicant.
On 26 July 2006 the District Court (“Okružni sud”) in Belgrade quashed the Municipal Court judgment and ordered a retrial.
On 23 October 2006 the Municipal Court suspended the proceedings due to the bankruptcy of the respondent party’s successor. This decision was served on the applicant on 28 June 2007.
It would appear that the proceedings are still pending at the first instance.
THE LAW
Under Articles 6 § 1 and 13 of the Convention the applicant complained, primarily, about the length of the above proceedings and a lack of an effective domestic remedy in that regard. He also complained about the fairness of the impugned civil proceedings.
1. The part of the application concerning the length of the civil proceedings and a lack of an effective domestic remedy in that respect were communicated to the Government.
After the failure of attempts to reach a friendly settlement, by a letter of 9 January 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I declare that the Government of the Republic of Serbia acknowledge that there had been a violation of the applicant’s right[s] under Articles 6 paragraph 1 and 13 of the Convention and offer to pay to the applicant, Mr Dragan Gavrilović, the amount of EUR 2,610 [two thousand six hundred and ten euros] in respect of the application registered under no. 55155/07 before the European Court for Human Rights.
This sum, which covers any non-pecuniary damage as well as costs, shall be paid in dinar counter-value, free of any taxes that may be applicable and to an account named by the applicant. The sum shall be payable within three months from the date of delivery of the judgment by 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.”
The applicant made no comment.
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 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 and a lack of an effective domestic remedy in that respect (see, for example, Ilić v. Serbia, no. 30132/04, §§ 93 and 105, 9 October 2007; and Nemet v. Serbia, no. 22543/05, §§ 17-18, 8 December 2009).
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. Relying on Article 6 § 1 the applicant also complained that the impugned civil proceedings were unfair.
The Court notes that those proceedings are still pending. Accordingly, this complaint is premature and must be rejected under 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 and Article 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike part of the application concerning the length of the proceedings and a lack of an effective domestic remedy in that regard out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Seçkin ErelPaulo Pinto de Albuquerque
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy