THIRD SECTION
DECISION
Application no. 5224/11
Dejan LUKOVIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 16 December 2014 as a Committee composed of:
Ján Šikuta, President,
Dragoljub Popović,
Iulia Antoanella Motoc judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 30 December 2010,
Having regard to the comments submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dejan Luković, is a Serbian national, who was born in 1977 and lives in Sevojno. He was represented before the Court by Ms R. Garibović, a lawyer practising in Novi Pazar.
The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 April 2008 the Municipal Court (Opštinski sud) in Užice awarded the applicant certain sums against Raketa-Putnički Saobraćaj AD, at that time a company predominantly comprised of State-owned capital (hereinafter “the debtor”). This judgment became final on 23 April 2010.
In the meantime, on 11 December 2008 the State sold its shares to a private company.
On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. The applicant duly reported his claim from the above judgment to the insolvency administration. On 8 June 2011 the court accepted the applicant’s claim. The applicant’s claim has only been partially enforced in the ongoing insolvency proceedings.
COMPLAINTS
The applicant complained about the failure by the national authorities to enforce the final court decision rendered in his favour. These complaints fall to be examined under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
The relevant provisions of Articles 6 § 1 and 13 of the Convention, as well as Article 1 of Protocol No. 1 read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government asked the Court to declare the application inadmissible for failure to exhaust domestic remedies. In particular, since the application concerns the non-enforcement of a final domestic decision rendered in the favour of the applicant against a private company, the applicant could, and should have lodged a constitutional appeal.
The Court reiterates that the State is directly liable for the debts of State-controlled companies even after their privatisation, on condition that the court decision at issue became final when the company operated as a State-controlled entity (see Marinković v. Serbia, no. 5353/11, § 39, 22 October 2013). It further notes that the Municipal Court judgment of 10 April 2008, the non-enforcement of which is the subject matter of the present case, became final on 23 April 2010, well after the debtor’s final privatisation on 11 December 2008.
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, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).
The Court has consistently held that a constitutional appeal should, in principle, be considered as an effective domestic remedy in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009).
There is no reason to depart from that jurisprudence in the present case (contrast Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011 concerning the non-enforcement of final court decisions rendered against socially/State-owned companies).
As the applicant failed to lodge a constitutional appeal, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Marialena TsirliJán Šikuta
Deputy RegistrarPresident
Full & Egal Universal Law Academy