Communicated on 15 April 2015
THIRD SECTION
Application no. 2632/09
Bora JOVANOVIĆ against Serbia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
1. All applicants are Serbian nationals. For additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, see the attached appendix.
A. The circumstances of the case
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. All applicants were dismissed by their respective employers and subsequently instituted separate civil suits against them, seeking reinstatement and/or pecuniary redress. They have all obtained final court decisions in their favour, which remain unenforced to the present day.The debtor companies were registered as fully or predominantly socially-owned companies in the relevant public registries before and throughout the relevant insolvency/enforcement proceedings.
1. As regards the first applicant (application no. 2632/09)
4. In 5 February 2003 the applicant were dismissed by his employer “Društveno preduzeće Galpres” in Leskovac.
5. On 9 December 2004 the Leskovac Municipal Court ruled in favour of the applicant and ordered his employer to:
i. reinstate him within 8 days to a post which corresponded to his professional qualifications;
ii. pay him the outstanding salary arrears, due from 15 February 2003 until his reinstatement;
iii. pay him the pension and disability insurance contributions (“doprinosi za penzijsko i invalidsko osiguranje”) due for that period; and
iv. pay 14,700 dinars (RSD) for his legal costs.
6. This judgment in respect of reinstatement and contributions became final on 16 February 2005 and enforceable on 19 March 2005.
7. On 6 April 2005 the Municipal Court:ordered the enforcement;stated that a fine in the amount of RSD 50,000 would be imposed on the debtor, as well as RSD 10,000 on its director, should the debtor fail to comply with the order within eight days.
8. The enforcement order became final on 20 May 2005.
9. On 29 June 2005 the enforcement court imposed the said fine on the debtor and stated that should it fail to secure the needed compliance within another eight days, a new fine of RSD 100,000 and 20,000 would be imposed.
10. Given that the debtor had paid the first fine without reinstating the applicant, on 27 September 2005 the enforcement court imposed the second fine and stated that another fine in the amount of RSD 150,000/30,000 would be imposed should it fail to comply with that order within an additional period of three days. The higher court upheld this decision on 3 November 2005. On 4 July 2008 the president of the enforcement court informed the Ministry that the enforcing judge had been replaced and no steps had been taken since 2005.
11. In the meantime, on 13 November 2006 the Municipal Court awarded the applicant salary arrears in the amount of RSD 574,313.52 from 15 February 2003 to 1 May 2006, plus statutory interest accrued as of 2003 until payment, the corresponding pension and social contributions, as well as RSD 113,960 for costs. The judgment became final on 7 March 2007 and enforceable on 19 April 2007. On 24 April 2007 the Municipal Court ordered its enforcement.
12. The debtor company is apparently undergoing restructuring.
2. As regards the second applicant (application no. 30723/09)
13. On 26 May 2004 the applicant was dismissed by his employer DP “Udarnik” (Društveno preduzeće za transportno-pretovarne usluge “Udarnik” Beograd) from Belgrade.
14. On 20 December 2006 the Third Belgrade Municipal Court:
(i) declared the employer’s decision null and void;
(ii) ordered the applicant’s reinstatement within 8 days, and
(iii) awarded the applicant RSD 49,500 on account of the costs incurred during the labour-related proceedings.
The District Court in Belgrade upheld this judgment on 10 July 2008. It became enforceable on 20 December 2008.
15. The Commercial Court insolvency proceedings in respect of the debtor were opened on 19 March 2007 and closed on 14 May 2007. The debtor continued doing business.
16. On 21 January 2009 the applicant filed a request for enforcement and amended it on 6 March 2009. Throughout 2009, he complained at least five times to the enforcement court about its failure to issue an enforcement order.
17. On 13 October 2009 the enforcement court rejected his request, stating that the debtor had been subject to the pending insolvency proceedings. The applicant unsuccessfully appealed and further addressed the enforcement court on numerous occasions.
18. The debtor company has apparently been subject to another set of insolvency proceedings as of 2011.
3. As regards the third applicant (application no. 32658/12)
19. On 25 June 2010 the First Belgrade Municipal Court accepted the settlement of the dispute between the applicant and his employer “Livnica Ralja AD” from Ralja, the terms of which were as follows:the dismissal of the applicant in 2002 was declared null and void and the employer was to reinstate the applicant within 8 days to a post which corresponded to his professional qualifications;the employer was to pay the applicant RSD 1,544,783 and 484,810.65, respectively, on accounts of outstanding salary arrears and corresponding social contributions due from 11 March 2002 to 31 May 2010, as well as the court and settlement stamps.
20. The court’s decision became final and enforceable on the same date.
21. The enforcement court issued the enforcement order on 29 June 2010. The applicant asked the court to expedite the enforcement proceedings on several occasions. On 28 March and 2 June 2011 the bailiff found no available assets to enforce the settlement.
22. On 18 April 2011 the Belgrade Commercial Court opened and terminated the insolvency proceedings in respect of the debtor, and ordered its liquidation, apparently without having any legal successor. This decision became final on 23 June 2011.
23. On 28 June 2011 that decision was registered (“zabeležba”) in the relevant public registries concerning the status of all companies. The date of its publication in the Official Gazette of the Republic of Serbia is not available in these registries.
24. On 18 October 2011 the enforcement court suspended the enforcement proceedings given that no available assets had been found.
25. On 25 November 2011 the enforcement court terminated the enforcement due to the debtor’s liquidation.
4. As regards the fourth applicant (application no. 9370/13)
26. Between 1990 and 2007 the applicant, at the time apparently employed with “Raška” Holding Kompanija AD - “Pamučna predionica”, DOO Novi Pazar, was placed by her employer on compulsory paid leave until such time as normal production could be resumed and the company’s business performance had improved sufficiently. Whilst on this leave, in accordance with the relevant domestic legislation, the applicant was entitled to a significantly reduced monthly income, as well as the payment of her pension, disability and other social security contributions.
27. In February 2007, many employees on compulsory leave were declared redundant and underwent the Government’s “social programme”. After enquiring about her entitlements, on 14 March 2007 the applicant was served with a decision of 18 March 1991 on her dismissal.
28. On 9 July 2007 the Novi Pazar Municipal Court declared the dismissal null and void and ordered her employer:
i. to reinstate her within 8 days to a post which corresponded to her professional qualifications; and to pay her
ii. the minimum salary arrears due from 8 November 1990 to 16 March 2007, together with statutory interest;
iii. the pension and disability insurance contributions due from 1 January 1994 to 16 March 2007; and
iv. RSD 11,700 for her legal costs.
29. This judgment became final on 5 September 2007 and the Municipal Court ordered its enforcement on 3 December 2007.
30. On 6 May 2008 the Municipal Court ordered the applicant’s employer to pay her the pension and disability insurance contributions due from 16 March 2007 to 22 October 2007 and RSD 13,000 for her legal costs.
31. This judgment became final on 22 January 2009. The enforcement courts rejected the applicant’s request for enforcement. Following an instruction of the Supreme Court of 24 February 2011 that the enforcement proceedings should be processed, the enforcement order was adopted on 7 July 2011. The applicant was also awarded RSD 7,420 for the enforcement costs.
32. The applicant’s debtor is apparently undergoing restructuring.
B. Relevant domestic law and practice
33. The domestic law and practice concerning the status of socially/State-owned companies, the enforcement and insolvency proceedings, as well as the case-law of the Constitutional Court in this regard, are outlined in the cases of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., 15 January 2008, §§ 57-82; Vlahović v. Serbia, no. 42619/04, §§ 37-47, 16 December 2008; Crnišanin and Others v. Serbia, nos. 35835/05 et seq., §§100-104, 13 January 2009; EVT Company v. Serbia, no. 3102/05, §§ 26-7, 21 June 2007; Marčić and Others v. Serbia, no. 17556/05, § 29, 30 October 2007; Adamović v. Serbia, no. 41703/06, §§ 17‑21, 2 October 2012; Marinković v. Serbia (dec.), no. 5353/11, 29 January 2013, §§ 26-9 and §§ 31-44, Jovičić and Others v. Serbia (dec.), nos. 37270/11, §§ 88-93, 15 October 2013 and Sokolov and Others v. Serbia (dec.), nos. 30859/10 et al., § 20, 14 January 2014.
COMPLAINTS
The applicants complain about the failure by the national authorities to enforce final court decisions in their favour and that they have had no effective domestic remedy in this respect.
The first applicant relies on Article 6 of the Convention only. The second applicant does not invoke any article. The third applicant complains under Articles 6 and 13 of the Convention, while the fourth applicant, in addition to these two articles, invokes also Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. The Government are invited to inform the Court whether the debtors at issue were, at the relevant time, the companies predominantly comprised of socially/State-owned capital and/or companies effectively controlled or managed by the State and, if so, to what extent, as well as to provide all relevant documents in this respect (see, among many authorities, R. Kačapor and Others v. Serbia, nos. 2269/06 et al., 15 January 2008).
2. Has there been a violation of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1? In particular, does the failure to enforce final and enforceable judgements/decisions, including the requirement to reinstate, in the applicants’ favour amount to a violation of one or both of these provisions (see, for example, Tarverdiyev v. Azerbaijan, no. 33343/03, 26 July 2007; Akhundov v. Azerbaijan, no. 39941/07, 3 February 2011, Efendiyeva v. Azerbaijan (just satisfaction), no. 31556/03, 11 December 2008)?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1 and Article 6 of the Convention, as required by Article 13 of the Convention?
4. As regards the third case only (application no. 32658/12), has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see, for example, Sokolov and Others v. Serbia (dec.), nos. 30859/10 et al., § 20, 14 January 2014)?
Appendix
No.
Application no.
and date
of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
2632/09
10/01/2009
Bora JOVANOVIĆ
10/03/1951
Leskovac
Serbian
30723/09
02/06/2009
Neđo KRNDIJA
10/04/1948
Barič
Serbian
32658/12
27/04/2012
Predrag VUKOSAVLJEVIĆ
18/11/1963
Ralja
Serbian
Nada CRNJA
9370/13
05/09/2012
Enisa MAVRIĆ
21/11/1967
Novi Pazar
Serbian
Refija GARIBOVIĆ
Full & Egal Universal Law Academy