THIRD SECTION
DECISION
Application no. 51514/10
Živka LUKIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 6 September 2016 as a Committee composed of:
Pere Pastor Vilanova, President,
Branko Lubarda,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 September 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Živka Lukić, is a Serbian national, who was born in 1948 and lives in Obrenovac. She was represented before the Court by Ms D. Veličković, a lawyer practising in Obrenovac.
The Serbian Government (“the Government”) were represented by their Agent at the time, Ms V. Rodić.
A. The facts as submitted by the applicant
On 19 June 2007 the Obrenovac Municipal Court ordered a socially-owned company Komgrap IGM Obrenovac DOO (hereinafter “the debtor”), to pay the applicant a specified amount on account of salary arrears. This judgment became final on 7 August 2007.
On 1 November 2007 upon the applicant’s request to that effect, the Obrenovac Municipal Court ordered the enforcement of the said judgment.
On 22 July 2010 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor. The applicant did not report her claims in the insolvency proceedings.
The said final court judgment remains unenforced to the present day.
The applicant never lodged a constitutional appeal.
B. The additional facts submitted by the Government
The Government informed the Court that on 22 May 2007 the debtor’s parent company, Holding kompanija Komgrap AD was privatised. This company owns a 100 % equity interest in the debtor.
COMPLAINTS
The applicant essentially complained about the non-enforcement of the final judgment rendered in her favour. These complaints fall to be examined under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.
THE LAW
The Government asked the Court to declare the application inadmissible for failure to exhaust domestic remedies. Specifically, they noted that the judgment in question became final on 7 August 2007, that is after the debtor’s parent company had already been privatised. Therefore, the applicant should have made of use the constitutional appeal before addressing the Court.
The applicant did not contest this submission. In response, she only maintained that the Serbian authorities remained responsible for the
non-enforcement of the decision rendered in her favour.
The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).
As regards Serbia in particular, the Court held that a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06, and others, § 51, 1 December 2009). Further, in Ferizović the Court established that the constitutional appeal was to be deemed as an effective domestic remedy in respect of all cases concerning the non-enforcement of judgments rendered against socially/State owned companies starting with 4 October 2013 (see Ferizović v. Serbia (dec.), no. 65713/13, 26 November 2013).
In addition, as regards State-controlled companies which were privatised, the Court has opined that the State is directly liable for their debts even after their privatisation, on condition that the court decision at issue became final when the company still operated as a State-controlled entity (see Jovičić and Others v. Serbia, nos. 37270/11, 37278/11, 47705/11, 47712/11, 47725/11, 56203/11, 56238/11 and 75689/11, § 36, 13 January 2015 and Marinković v. Serbia, no. 5353/11, § 39, 22 October 2013).
Turning to the present case, the Court notes from the documents submitted by the parties that the debtor in question was privatised on 22 May 2007 and that the non-enforced court judgment became final on 7 August 2007, that is after the privatisation. In these circumstances, as well as given the fact that the applicant did not contest the Government’s submissions to this effect, the Court cannot but consider the debtor as a private entity and apply the rule established in Vinčić.
The Court therefore agrees with the Government’s position that the applicant should have exhausted the constitutional appeal avenue before addressing the Court and rejects the application in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 September 2016.
Fatoş AracıPere Pastor Vilanova
Deputy RegistrarPresident
Full & Egal Universal Law Academy