SECOND SECTION
DECISION
Application no. 46749/06
by Perica PEŠIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 14 September 2010as a Committee composed of:
András Sajó, President,
Dragoljub Popović,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 10 November 2006,
Having regard to the declaration submitted by the respondent Government on 1 September 2009 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Perica Pešić, is a Serbian national who was born in 1950 and lives in Leskovac. He was represented before the Court by Mr S. Pejčić, a lawyer practising in Niš. 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.First set of proceedings
At the relevant time the applicant was a fixed-term lecturer at a college in Leskovac, whose contract was due to expire in 2004.
In June 2002 and 22 July 2003, respectively, the college announced the vacancies for the position of lecturers in the forthcoming period. The applicant applied, but the college selected other candidates.
On 28 October 2002 and 15 December 2003, respectively, the applicant filed a civil claim with the Municipal Court (Opštinski sud) in Leskovac, seeking annulment of the recruitment procedures.
On 4 May 2004 the Municipal Court joined the two civil suits into a single case.
On 9 March 2005 the Municipal Court ruled against the applicant, but on 9 September 2005 the District Court (Okružni sud) in Leskovac quashed this judgment on appeal.
On 4 July 2006 the Municipal Court again ruled in favour of the college, which judgment was served on the applicant on 8 December 2006.
On 15 December 2006 the applicant lodged an appeal with the District Court.
On 28 November 2008 the President of the District Court personally acknowledged that the District Court had received the applicant's case file on 29 December 2006.
The proceedings would appear to be still pending on appeal.
2. Second set of proceedings
By 12 August 2004 the applicant's contract with the college had expired.
On 21 June 2004 and 2 August 2004, respectively, the applicant filed two separate claims with the Municipal Court, seeking “reinstatement”.
Having joined these two claims into a single case, on 21 December 2004 the Municipal Court ruled against the applicant, rejecting both.
On 25 October 2005 the District Court upheld this judgment, and on 15 March 2006 the Supreme Court (Vrhovni sud Srbije) rejected the applicant's appeal on points of law (revizija).
COMPLAINTS
The applicant complained under Article 6 of the Convention about the length of the first set of proceedings, as well as their overall fairness and/or impartiality. Relying on Articles 6, 9, 10, 11 and 14 of the Convention and Protocol No. 12, he further complained about the length and fairness of the second set of proceedings, including their outcome, which he considers to be inconsistent with the domestic courts' jurisprudence in other similar cases.
THE LAW
1. The applicant complained about the excessive length of his labour-related suit, which complaint was communicated to the Government under Articles 6 § 1 of the Convention.
By letter dated 1 September 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 applicant's right under Article 6 paragraph 1 of the Convention and offer to pay to the applicant, Mr Perica Pešić, the amount of EUR 2,800 ex gratia in respect of the application registered under no. 46749/06 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 4 November 2009, the applicant informed the Court that he could not accept the Government's declaration, as the damage he 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 and six months 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, this part of 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 applicant's domestic claim or, indeed, his 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).
2. The applicant also complained about the overall fairness and impartiality of same labour-related proceedings.
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. Finally, relying on Articles 6, 9, 10, 11 and 14 of the Convention and Protocol No. 12, he further complained about the length and fairness of the second set of proceedings, including their outcome, which he considered to be inconsistent with the domestic courts' jurisprudence in other similar cases.
The Court observes that the second set of proceedings lasted twenty three months, during which the applicant's case was decided at three levels of jurisdiction. The Court has also examined the applicant's other complaints and found that there is nothing in the case file which would 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
Takes note of the terms of the respondent Government's declaration in respect of the length of proceedings complaint communicated under Article 6 § 1 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 so far as it relates to this complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Françoise Elens-PassosAndrás Sajó
Deputy RegistrarPresident
Full & Egal Universal Law Academy