SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 6038/08
by Slobodan NEŠKOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 10 May 2011 as a Committee composed of:
András Sajó, President,
Dragoljub Popović,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 14 January 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Slobodan Nešković, is a Serbian national who was born in 1941 and lives in Čačak. 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 summarized as follows.
In 1991 R.M. purchased a flat from the City of Belgrade. Dissatisfied with the purchase price, she filed a lawsuit for compensation. In the course of the proceedings R.M. died, and the applicant, as her legal successor stepped into the proceedings.
Following four remittals, on 30 May 2006 the First Municipal Court in Belgrade partly granted the applicant’s request. On 22 May 2007 the District Court in Belgrade altered the judgment of 30 May, rejecting the applicant’s request in its entirety. On 3 April 2008 the Supreme Court upheld the judgment of 22 May 2007. The Supreme Court’s judgment was served on the applicant on 21 January 2009.
THE LAW
Under Article 6 § 1 of the Convention, the applicant complained about length of civil proceedings for compensation. On 12 February 2009 he informed the Court about the final outcome of his proceedings, and complained about the inconsistency of practice of the Supreme Court, without providing any further details as to this inconsistency.
1. By letter dated 10 September 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue of the length of the civil proceedings for compensation, 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:
“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 Slobodan Nešković the amount of EUR 600 ex gratia in respect of the application registered under no. 6038/08 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 letter of 22 October 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably.
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 this part of the application (Article 37 § 1 in fine).
2.The applicant further complained about the outcome of the proceedings in question, alleging that the Supreme Court has had divergent case-law regarding the issues dealt with the domestic courts in the instant case.
Noting that as of 7 August 2008 the constitutional appeal should be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (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), and even assuming that the applicant exhausted this particular remedy in relation to his complaint, which was introduced on 12 February 2009, the Court notes that it is completely unsubstantiated, and as such manifestly ill-founded.
This part of the application must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases the complaint of the length of civil proceedings, in accordance with Article 37 § 1 (c) of the Convention;
Declares the reminder of the application inadmissible.
Françoise Elens-PassosAndrás Sajó
Deputy RegistrarPresident
Full & Egal Universal Law Academy