SECOND SECTION
DECISION
Application no. 40053/06
by Dušan and Silva MIRKOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 23 March 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 29 September 2006,
Having regard to the declaration submitted by the respondent Government on 5 August 2009 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Dušan and Ms Silva Mirković, are Serbian nationals who were born in 1928 and 1955, respectively, and live in Belgrade. They were represented before the Court by Mr V. Zdravković, a lawyer practising in Belgrade. 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 8 November 1994 the applicants initiated a copy right related civil suit against a pharmaceutical company before the District Court in Belgrade. Since that time the court has scheduled numerous hearings, many of which were not held, for diverse reasons. The judge in the case was changed at least two times, while at least five expert opinions on the same issue were ordered. However, according to the information in the case file, the case appears to be still pending at first instance.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.
THE LAW
The application had been communicated to the Government under Article 6 § 1 of the Convention, regarding the procedural delay in the applicants’ copyright suit.
By letter dated 5 August 2009, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration, signed by the Government’s Agent, provided as follows:
“I declare that the Government of the Republic of Serbia are ready to accept that there had been a violation of the applicants’ right under Article 6 paragraph 1 [...] and Article 13 of the Convention and unilaterally offer to pay to the applicants jointly the amount of EUR 3,000 ex gratia in respect of the application registered under no. 40053/06 before the European Court of Human Rights.
This sum, which covers any pecuniary and 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 ... [specified] ... by the applicant. The sum shall be payable within three months from the date of delivery of the [decision] by 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.”
In a submission dated 1 October 2009, the applicants informed the Court that they could not accept the unilateral declaration, as the damage they had suffered had been much greater.
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. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if it finds that “it is no longer justified to continue the examination of the application”, and it has done so in the past on the basis of certain unilateral declarations by respondent Governments even if the applicants had maintained their cases.
To this end, the Court will carefully examine the declaration made by the Government in the present case in the light of the principles emerging from its case-law (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for a State Party under Article 6 § 1 of the Convention concerning the right to a hearing within a reasonable time (see, among many others, Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006; Kudła v. Poland [GC], no. 30210/96, ECHR 2000‑XI; Ilić v. Serbia, no. 30132/04, 9 October 2007). Where the Court has found a breach of this provision it has awarded just satisfaction, the amount of which has depended on the particular features of the case.
Having regard to the nature of the concessions 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 some six years of the impugned proceedings fall within the Court’s competence ratione temporis, Serbia having ratified the Convention on 3 March 2004), the Court finds that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention; see, for the relevant principles, Tahsin Acar, cited above; Haran v. Turkey, no. 25754/94, judgment of 26 March 2002).
The Court is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue with this examination (Article 37 § 1 in fine). Nevertheless, in the particular circumstances of the case, the Court considers that the State should still ensure that all necessary steps are taken to allow the proceedings to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice.
Accordingly, the application should be struck out of the list.
Since the impugned proceedings appear to be still pending, it is to be noted that the Court’s strike-out decision is without prejudice to the merits of the applicants’ domestic claim or, indeed, their ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.
Finally, the Court recalls that, should the respondent State, fail to comply with the terms of its unilateral declaration in the present case, the application could be restored to the Court’s list pursuant to Article 37 § 2 of the Convention (see Aleksentseva and 28 Others v. Russia (dec.), no. 75025/01, ECHR, 23 March 2006).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 13 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 Françoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy