THIRD SECTION
DECISION
Application no. 18859/12
Stoimir RADOVANOVIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 21 October 2014 as a Committee composed of:
Ján Šikuta, President,
Dragoljub Popović,
Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 29 February 2012,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Stoimir Radovanović, is a Serbian national, who was born in 1955 and lives in Novi Pazar. He was represented before the Court by Ms R. Paljevac-Emrović, a lawyer practising in Novi Pazar.
The Serbian Government (“the Government”) were represented by their successive Agents, M S. Carić and Ms V. Rodić.
A. The circumstances of the case as presented by the applicant
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed by “Fabrika za proizvodnju konfekcije i trikotaže ‘Raška’ Novi Pazar” (hereinafter “the debtor”), which was, at the relevant time, a company predominantly comprised of socially-owned capital.
On 22 January 2004 the applicant and the debtor reached a settlement before the Municipal Court (Opštinski sud) in Novi Pazar, whereby the debtor was ordered to pay the applicant certain sums on account of due salary arrears, employment benefits and costs of the proceedings.
On 10 May 2003 and 20 June 2004 the applicant allegedly filed requests for enforcement of the court settlement to the Court of First Instance (Osnovni sud) in Novi Pazar, to which he had never received any response.
B. The circumstances of the case as presented by the Government
The Government informed the Court that the competent enforcement court had never registered any request for the enforcement of the court settlement. Moreover, the requests were allegedly filed with the Court of First Instance, which did not exist at the relevant time. In this respect, the Government submitted a report of the Court of First Instance of 14 February 2013.
C. Relevant domestic law
1. The Organisation of the Courts Act 2001 (Zakon o uređenju sudova; published in Official Gazette of the Republic of Serbia – OG RS - nos. 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06)
Article 10 provided, inter alia, that the courts of general jurisdiction were Municipal Courts, District Courts, Appeals Courts and Supreme Court of Serbia.
Article 21 provided, inter alia, that Municipal Courts were, in general, competent enforcement courts.
2. The Organisation of the Courts Act 2008 (Zakon o uređenju sudova; published in OG RS nos. 116/2008, 104/2009, 101/2010, 31/2011, 78/2011, 101/2011, 101/2013)
This Act came into force on 1 January 2010. It repealed the Organisation of the Courts Act 2001. Article 11 provides, inter alia, that the courts of general jurisdiction are Courts of First Instance, High Courts, Appeals Courts and Supreme Court of Cassation.
COMPLAINT
The applicant complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 thereto about the non-enforcement of the court settlement of 22 January 2004.
THE LAW
The Government asked the Court to declare the application inadmissible as an abuse of the right of petition. In particular, by stating in his application to the Court that he had lodged requests for enforcement of the court settlement and by submitting copies of requests which had never been registered at the competent enforcement court, the applicant had deliberately misled the Court in order to conceal his failure to institute the enforcement proceedings.
The applicant did not comment.
The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; Poznanski and Others v. Germany (dec.), no 25101/05, 3 July 2007; and Simitzi‑Papachristou and Others v. Greece (dec.), no. 50634/11, § 36, 5 November 2013) or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili, cited above) or where new significant developments occurred during the procedure (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008; and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012).
Turning to the present case, the Court notes that, in his application to the Court, the applicant indeed stated that he had requested the enforcement of the court settlement of 22 January 2004. In support of this allegation, he submitted copies of two requests for enforcement, dated 10 May 2003 and 20 June 2004, addressed to the Court of First Instance, both signed by him and stamped by his legal representative. The Court also notes that the request for enforcement of 10 May 2003 had predated the court settlement to which it referred. Moreover, both requests for enforcement were purportedly lodged with the Court of First Instance, which did not exist at the relevant time. Lastly, according to the report of the Court of First Instance in Novi Pazar submitted by the Government no request for enforcement by the applicant was registered in 2003 or 2004.
In the light of the foregoing observations and the fact that the applicant did not make any comments in this regard, the Court considers that the applicant made untrue assertions with the intention of misleading it (see Kerechashvili v. Georgia, cited above). He therefore acted contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
It follows that his application must be rejected as a whole as an abuse of the right to application pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Marialena TsirliJán Šikuta
Deputy RegistrarPresident
Full & Egal Universal Law Academy