SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 44694/06
by Eržebet PAP
against Serbia
The European Court of Human Rights (Second Section), sitting on 21 June 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 26 October 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Eržebet Pap, is a Swiss national, born and raised in Serbia, but of Hungarian descent. She was born in 1937 and lives in Basel. The applicant is represented before the Court by Mr T. Šipoš, a lawyer practising in Bečej. The Serbian Government (“the Government”) are represented by their Agent, Mr S. Carić. The Swiss Government were invited to intervene in the proceedings (Article 36 § 1 of the Convention), but they have not expressed their intention to do so.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 September 1998 the applicant was travelling from Serbia to Switzerland, carrying 11,000 Swiss Francs (“CHF”) and 2,000 German Marks (“DEM”) in cash. Having found this unreported money on her person, Serbian customs officers seized it.
Following a remittal, on 2 August 2001 the Federal Foreign Currency Inspectorate (Savezni devizni inspektorat, Odeljenje u Beogradu) found the applicant guilty of a minor offence (prekršaj) of only partially reporting the amount of cash she had been carrying, in violation of the then applicable Foreign Currency Act (Zakon o deviznom poslovanju). The applicant was thus fined in the amount of 1,000 Serbian Dinars, and CHF 5,500 of her CHF 11,000 were confiscated. Lastly, the Federal Foreign Currency Inspectorate ordered that the remaining CHF 5,500 and DEM 2,000 be paid back to the applicant.
On 30 May 2002 and 26 January 2006 the Federal Minor Offences Council (Savezno veće za prekršaje) and the Supreme Court, respectively, upheld the decision of 2 August 2001.
On 21 October 2009 the entirety of the amount of CHF 5,500 and DEM 2,000 (converted into euros) was paid to the applicant.
COMPLAINTS
In her application, the applicant complained about the non-enforcement of the Federal Foreign Currency Inspectorate’s final decision of 2 August 2001. In particular, she complained about the respondent State’s failure to pay back the sums in question and the consequent breach of her property rights.
The applicant further complained that the proceedings at question had not been conducted in Hungarian, her mother tongue, and that throughout the proceedings she had been discriminated based on her ethnic origin. She also complained about the outcome of the proceedings and the failure of the respondent Party to pay interest on the amounts which were effectively returned to her.
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 issue raised by the application under Article 1 of Protocol 1. 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 1 of the Protocol 1 to the European Convention on Human Rights and offer to pay to the applicant Ms Eržebet Pap, the amount of EUR 2,400 in respect of the application registered under no. 44694/06 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 and to an account [specified] by the applicant. The sum shall be payable within three months from the date of delivery of the [decision] taken 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 5 March 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 an 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 the right to have one’s domestic decision enforced (see, for example, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 511, § 41; Burdov v. Russia, no. 59498/00, ECHR 2002-III; Ilić v. Serbia, no. 30132/04, 9 October 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 this part 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. Insofar as the remaining complaints raised by the applicant fall within the Court’s competence ratione materiae – bearing in mind the reservation of the Republic of Serbia deposited with ratification instrument to the effect of non-applicability of Article 6 of the Convention to minor offence proceedings – the Court observes as follows.
3. The applicant complained that she was not able to have the proceedings conducted in Hungarian – her mother tongue – as she was not fluent in Serbian. The Court notes that in addition to having been represented before the domestic institutions by an apparently bilingual lawyer, the applicant has never raised this complaint domestically. Thus, this complaint needs to be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
4. The applicant also complained of being discriminated against, based on her Hungarian descent. However, she has not provided any means of comparison, enabling the Court to consider the difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008-). The complaint is thus completely unsubstantiated. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
5. Furthermore, the applicant complained of the outcome of the proceedings, and the confiscation of the amount of CHF 5,500. This complaint was introduced on 20 February 2010, while the proceedings in question effectively ended on 26 January 2006. Therefore, it needs to be rejected as submitted outside of the six-months time limit, pursuant to Article 35 § 1 of the Convention.
6. Finally, the applicant complained about the failure of the respondent Party to pay her interest on the amount due in accordance with the decision of 2 August 2001. The Court notes that this interest could not have been calculated in the minor offence proceedings. To this end, the applicant could have pursued the avenue of separate civil proceedings for the interest lost, which she had apparently failed to do. Therefore, this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the applicant’s complaint regarding the non-enforcement of decision of 2 August 2001 out of its list of cases 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