SECOND SECTION
DECISION
Application no. 9285/07
by Idriz MUDERIZOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 29 March 2011 as a Committee composed of:
Ireneu Cabral Barreto, President,
Dragoljub Popović,
András Sajó, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 23 January 2007,
Having deliberated, decides as follows:
THE FACTS
The application was lodged by Mr Idriz Muderizović, a Serbian national who was born in 1953 and lives in Novi Pazar. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
The applicant used to be a judge of the Municipal Court in Novi Pazar. On 13 December 2002 a private party filed an indictment against him, for an alleged crime of breach of law by a judge (kršenje zakona od strane sudije), following which in 2003 the applicant was suspended from performing his duties as a judge.
On 20 February 2008 the applicant was finally acquitted from all the charges, and on 9 May 2008 he was reinstated to the position of the judge.
On 15 October 2008 the Municipal Court ordered the Ministry of Justice to pay the applicant the difference in salary for the period of his suspension, together with applicable contributions and interest, which would appear to have been enforced.
The applicant also claimed to be awarded non-pecuniary damage suffered as a consequence of criminal proceedings instigated against him, and his suspension for which he alleged that had been imposed contrary to the presumption of innocence. These proceedings appear to be still pending.
COMPLAINTS
Under Article 6 of the Convention, the applicant complained about the length of criminal proceedings against him, as well as about the violation of his right to be presumed innocent. Under Article 10 of the Convention the applicant complained about having been indicted for the expression of his professional opinion.
THE LAW
1.By letter dated 18 November 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the applicant’s complaint about the length of the criminal proceedings against him. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I declare that 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 Idriz Muderizović, the amount of EUR 1,900 in respect of the application registered under no. 9285/07 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 to an account [specified] by the applicant. The 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 let to the bringing of the present application. ”
In a letter of 25 January 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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 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‑....; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – 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).
In view of the above, it is appropriate to strike this complaint out of the list.
2.The applicant further complained about the violation of his right to be presumed innocent.
Given that the proceedings at issue are apparently still pending, the Court finds that these complaints are premature and, as such, inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
3.Lastly, under Article 10 of the Convention, the applicant complained about having been indicted for the expression of his professional opinion.
Even assuming that this complaint is compatible ratione materiae with Article 10 of the Convention, and that the applicant’s suspension had a chilling effect on the exercise by the applicant of his freedom of expression, it was limited in duration, since on 20 February 2008 the applicant was finally acquitted of all the charges, and was on 9 May 2008 reinstated to the position of judge (see for example Harabin v. Slovakia (dec.) no. 62584/00, 29 June 2004). Moreover, the Court finds nothing in the case file which might disclose any appearance of a violation of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike out of its list of cases the complaint of the length of criminal proceedings against the applicant, in accordance with Article 37 § 1 (c) of the Convention;
Declares the reminder of the application inadmissible.
Françoise Elens-PassosIreneu Cabral Barreto
Deputy RegistrarPresident
Full & Egal Universal Law Academy