SECOND SECTION
DECISION
Application no. 27875/08
Miodrag KILIBARDA
against Serbia
The European Court of Human Rights (Second Section), sitting on 21 May 2013 as a Committee composed of:
Paulo Pinto de Albuquerque President,
Dragoljub Popović,
Helen Keller, judges,
and, Françoise Elens-Passos Acting Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2008,
Having regard to the declaration submitted by the respondent Government on 6 September 2011 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 COMPLAINT
The applicant, Mr Miodrag Kilibarda, is a Serbian national, who was born in 1950 and lives in Belgrade. He was represented before the Court by Ms V. Radomirović, a lawyer practising in Beograd.
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 12 December 1983 the applicant instituted civil proceedings against other private persons seeking the payment of a debt. On 3 March 1992 the Third Municipal Court (Treći Opštinski sud) in Belgrade ruled in favour of the applicant and on 26 March 1993 this judgment was enforced.
On an unspecified date in 1994 the applicant filed a claim against the same private persons for compensation of the economic value of the debt depreciated by the hyperinflation at the time.
On 26 March 2007 and 30 November 2007 the Municipal Court and the District Court (Okružni sud), respectively, ruled in favour of the applicant.
On 30 October 2008 the Supreme Court (Vrhovni sud) partially amended the Municipal and District Court judgments by reducing the amount awarded to the applicant.
On 11 November 2008 the Fourth Municipal Court (Četvrti Opštinski sud) in Belgrade terminated the enforcement proceedings as the debtors paid out the amounts due and the applicant withdrew his request for enforcement.
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the civil proceedings.
THE LAW
The application had been communicated to the Government under Article 6 § 1 of the Convention, regarding the procedural delay in the applicant’s two related sets of proceedings.
By a letter of 5 September 2011 the Government informed the Court that they proposed to make a 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 provided as follows:
“[...] the Government of the Republic of Serbia is ready to accept that there had been a violation of the applicant’s right under Article 6 paragraph 1 of the Convention and offer to pay to the applicant, Mr Miodrag Kilibarda, the amount of EUR 600 (six hundred euros) to cover any and all non-pecuniary damage and EUR 600 (six hundred euros) to cover any and all costs and expenses in respect of the application registered under no. 27875/08 before the European Court of Human Rights.
This sum, which covers 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 1 November 2011 the applicant indicated 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 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, [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 under Article 6 of the Convention about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; and Nemet v. Serbia, no. 22543/05, §§ 17-18, 8 December 2009). Where the Court has found a breach of this Article it has awarded just satisfaction, the amount of which has depended on the particular features of the case.
The Court considers that the two sets of proceedings in the present case relate to the same issue, and will therefore consider the period as a whole for the purposes of its Article 6 § 1 analysis, starting with 12 December 1983 and ending with 11 November 2008 (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 unilateral declaration in the present case, 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 only four years and eight months of the impugned 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)).
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).
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).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of 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.
Françoise Elens-Passos Paulo Pinto de Albuquerque
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy