Communicated on 20 January 2014
SECOND SECTION
Application no. 63398/13
Svetlana POP-ILIĆ against Serbia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
All applicants are Serbian nationals. For additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, see the attached Annex.
A. The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 13 April 2006 the Vlasotince Municipal Court ruled in favour of the applicants. The respondent, AD Reteks, a privately owned company, was ordered to: (a) reinstate them to their former jobs; (b) pay their salary arrears; and (c) pay the relevant social insurance contributions due for the same period.
By 11 July 2007 this judgment became final.
On 27 July 2007 the applicants filed a request for the enforcement of the said judgment.
On 6 August 2007 the Vlasotince Municipal Court accepted the applicants’ request and issued an enforcement order.
On 26 April 2010 the applicants lodged an appeal with the Constitutional Court, maintaining that they had suffered a breach of the right to a fair trial within a reasonable time and a violation of their property rights. In terms of redress, the applicants sought recognition of these violations, an order from the Constitutional Court for the expedition of the impugned enforcement proceedings, and the “removal of all adverse consequences” suffered in this connection (including through the payment of their outstanding pecuniary claims).
On 21 January 2011 the Leskovac Commercial Court opened insolvency proceedings (stečajni postupak) in respect of AD Reteks.
On 4 April 2012, in their submission filed with the Constitutional Court, the applicants noted the adoption of the amendments to the Constitutional Court Act, and specified their compensation claims accordingly. Specifically, on account of the pecuniary damage suffered, the applicants requested the respective amounts awarded to them by the final judgment in question, whilst as regards the non-pecuniary damage sustained they claimed 2,200 euros each (see at B.3 below).
On 23 April 2013 the Constitutional Court found, in the operative part of its decision (u izreci), that the applicants had indeed suffered a violation of their right to a fair trial within a reasonable time, as well as a violation of their property rights, but rejected the compensation claims regarding the non-pecuniary damages sought by the applicants. The Constitutional Court, lastly, ordered that the impugned enforcement proceedings be terminated in accordance with the applicable legislation (see at B.4 below).
In its reasoning concerning the compensation issue, the Constitutional Court stated that the applicants’ pecuniary and non-pecuniary damage claims had been filed out of time. In so doing, it referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, and Article 40 § 1 of the amendments themselves (see at B.3 below).
On 12 June 2013 Leskovac Municipal Court, specifically its detached section in Vlasotince, stayed the enforcement proceedings at issue.
B. Relevant domestic law and practice
1. The Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.
2. The Constitutional Court Act 2007 (Zakon o Ustavnom sudu; published in OG RS no. 109/07)
Article 85 § 1 refers to the necessary information which must be contained in the constitutional appeal. This information includes: (a) the appellant’s personal data; (b) information concerning his or her legal counsel; (c) the particulars of the decision being challenged; (d) an indication of the relevant provisions of the Constitution; (e) the description of the violations alleged; (f) the redress sought by the appellant; and (g) the appellant’s personal signature.
Article 89 § 2 provides that “[w]hen the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.”
3. The Amendments and Additions to the Constitutional Court Act 2011 (Izmene i dopune Zakona o ustavnom sudu; published in OG RS no. 99/11)
Article 32 of this Act amended Article 85 § 1 of the Constitutional Court Act 2007 in so far as it removed the general reference to the need for the appellant to state the kind of redress deemed necessary (see at B.2 above, under (f)). Article 85 § 1, as amended, instead required that a constitutional appeal must contain a specific indication of the amount and basis for any pecuniary and/or non-pecuniary damages sought by the appellant.
Article 32 of the Amendments and Additions to the Constitutional Court Act 2011, inter alia, also added paragraph 3 in Article 85 of the Constitutional Court Act 2007. This new provision stated that a compensation claim could only be made “simultaneously with the lodging of a constitutional appeal”.
According to Articles 40 § 1 and 42 of the Amendments and Additions to the Constitutional Court Act 2011, which entered into force on 4 January 2012, all cases still pending before the Constitutional Court were to be concluded pursuant to the Constitutional Court Act as amended in 2011.
4. The Insolvency Proceedings Act 2009 (Zakon o stecaju; published in OG RS no. 104/09)
Article 93 §§ 1 and 2 provides, inter alia, that any pending enforcement proceedings shall be terminated upon the opening of insolvency proceedings in respect of the same debtor.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the respondent State’s failure to enforce the final judgment rendered in their favour. They further submit that the Constitutional Court did not consider their compensation claims even though they had been formulated in accordance with the relevant legislation.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, and may they still claim to be victims of a violation of the Convention or Protocol No. 1 thereto, within the meaning of Article 34 of the Convention? In particular, did the applicants properly raise their compensation claims in the proceedings before the Constitutional Court and/or have they consequently obtained adequate redress?
2. Has there been a violation of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1? In particular, does the impugned non-enforcement amount to a violation of one or both of these provisions?
Appendix
No.
App. nos.
Lodged on
Applicant’s name
Date of birth
Place of residence
Represented by
Practising in
63398/13
28/06/2013
Svetlana POP-ILIĆ
02/08/1953
Vlasotince
Jasmina SPASIĆ
Vlasotince
76869/13
28/06/2013
Gordana ILIĆ
10/06/1957
Vlasotince
Jasmina SPASIĆ
Vlasotince
76879/13
28/06/2013
Jasmina BLAGOJEVIĆ
13/09/1955
Vlasotince
Jasmina SPASIĆ
Vlasotince
76886/13
28/06/2013
Ljubinka KOCIĆ
03/03/1961
Vlasotince
Jasmina SPASIĆ
Vlasotince
76890/13
28/06/2013
Jasmina DAVINIĆ
24/06/1955
Vlasotince
Jasmina SPASIĆ
Vlasotince
Full & Egal Universal Law Academy