SECOND SECTION
DECISION
Application no. 26338/07
Marko IGNJEVSKI
against Serbia
The European Court of Human Rights (Second Section), sitting on 15 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 16 May 2007,
Having regard to the declaration submitted by the respondent Government on 16 April 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 Marko Ignjevski, is a Serbian national, who was born in 1975 and lives in Bor. He was represented before the Court by Ms M. Ramović, a lawyer practising in Bor.
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.
1. The enforcement and land registry proceedings
In 1994 the applicant instituted enforcement proceedings against Lj.J.
During the course of the enforcement proceedings, on 23 January 2002 the Municipal Court (Opštinski sud) in Bor awarded the applicant the debtor’s property for a purchase price covering most of the judgment debt.
On 17 May 2002 the Municipal Court issued the decision transferring the said property to the applicant and ordering inscription of the applicant’s right to ownership in the land register. This decision became final on 27 June 2003.
Following three failed attempts, on 24 May 2007 the court effectively handed over the property in question to the applicant.
On 15 May 2009 the competent Land Registry Office (Služba za katastar nepokretnosti) in Bor approved, inter alia, inscription of the applicant’s right to ownership in the Cadastre (“land register”). On 17 October 2012, following an appeal and judicial review instituted by third persons, the competent second instance administrative body quashed the decision of 15 May 2009 and reversed the case for reconsideration.
On 24 May 2010, upon the applicant’s request to that effect, the First Instance Court (Osnovni sud) in Bor, now acting as the competent court, issued the enforcement order with respect to the remaining judgment debt.
According to the information provided by the parties, the impugned enforcement proceedings are still pending before the First Instance Court.
2. The civil proceedings
On 19 June 2001 the applicant instituted civil proceedings against Lj.J. and M.P. seeking the annulment of the Lj.J.’s gratuitous dispositions of certain property.
Following two remittals, on 12 July 2005 the Municipal Court suspended the proceedings pending the outcome of criminal proceedings against another private person.
On an unspecified date in 2007 the Municipal Court recommenced the civil proceedings.
On 10 March 2009 the Municipal Court dismissed the applicant’s lawsuit as incomplete. On 9 March 2010 the High Court (Viši sud) in Zaječar rejected the applicant’s appeal.
THE LAW
The applicant complained of the non-enforcement of the final domestic decision rendered in his favour, the length of related land registration proceedings and a lack of an effective domestic remedy in that regard. He relied on Article 6 § 1 of the Convention. Additionally, without invoking any particular provision of the Convention, the applicant complained about the outcome and the length of a separate set of civil proceedings.
The part of the application concerning the non-enforcement, the length of the land registration proceedings, and a lack of an effective domestic remedy, as well as the part concerning the length of the separate set of civil proceedings, had been communicated to the Government under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 thereto.
After the failure of attempts to reach a friendly settlement, by a letter of 16 April 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 under Articles 6 paragraph 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 to the Convention and offer to pay to the applicant, Mr Marko Ignjevski, the amount of EUR 4,680 (four thousand six hundred eighty euros) in respect of the application registered under no. 26338/07 before the European Court of 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. 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 a letter of 5 July 2013, the applicant’s representative indicated that the applicant 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 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 rights to enforcement of a final decision, to a hearing within a reasonable time and to an effective domestic remedy in this respect (see, for example, Ilić v. Serbia, no. 30132/04, 9 October 2007; EVT Company v. Serbia, no. 3102/05, §§ 46-49, 21 June 2007; ZIT Company v. Serbia, no. 37343/05, 27 November 2007; and Nemet v. Serbia, no. 22543/05, 8 December 2009). Where the Court has found a breach of these rights it has awarded just satisfaction, the amount of which has depended on the particular features of the case.
The Court considers that the enforcement proceedings and the land registration proceedings in the present case relate to the same issue, and will therefore consider the period of non-enforcement as a whole for the purposes of its Article 6 § 1 analysis, starting in 1994 and continuing up to date (see, mutatis mutandis, Cravcenco v. Moldova, no. 13012/02, § 49, 15 January 2008).
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 over nine years of the impugned enforcement proceedings and six years of the impugned civil proceedings fall within the Court’s competence ratione temporis (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.
The Court further assumes that the Government also undertook to ensure that the enforcement proceedings which are still pending domestically are concluded rapidly, whilst safeguarding the proper administration of justice.
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). 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).
Without invoking any particular provision of the Convention, the applicant also complained about the outcome of the civil proceedings.
The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I; and Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)), as it is not a court of appeal – or, as is sometimes said, a “fourth instance” – from these courts (see, among many other authorities, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296-C; and Melnychuk v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).
It follows that this part of the application is manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 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 13 of the Convention and Article 1 of Protocol No. 1 thereto and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases the part of the application concerning the non-enforcement and the length of civil proceedings, 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