SECOND SECTION
Application no. 53736/08
Ilija RIĐIĆ against Serbia
and 5 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 cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
All applicants were employed by Rudnik bakra Majdanpek, a copper mining company based in Majdanpek (“the debtor”).
Between 2001 and 2005 they all instituted separate civil suits against the debtor, seeking pecuniary redress on various grounds.
1. As regards the first applicant (Mr Ilija Riđić)
On 10 June 2002 the Majdanpek Municipal Court ruled in favour of the first applicant and ordered the debtor to pay him:
(a) the salary arrears due between 31 May 1998 and 20 July 2001, plus statutory interest;
(b) the pension, disability, health and other insurance contributions due for the same period; and
(c) his legal costs.
On 2 October 2002 the judgment became final.
Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the first applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
On 10 January 2003 the court accepted the applicant’s request and issued an enforcement order. On 21 January 2004 the same court issued an additional order to the same effect.
On 18 January 2006 the enforcement proceedings were stayed.
In May 2011, following their resumption, the first applicant was paid the full amounts awarded in his favour.
2. As regards the second applicant (Mr Slobodan Srbu)
On 25 April 2002 the Majdanpek Municipal Court ruled in favour of the second applicant and ordered the debtor to pay him:
(a) the salary arrears due between 1 November 1999 and 1 August 2000, plus statutory interest;
(b) the pension, disability, health and other insurance contributions due for the same period; and
(c) his legal costs.
On 19 June 2002 the judgment became final.
Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the second applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
On 10 January 2003 the court accepted the applicant’s request and issued an enforcement order.
On 18 January 2006 the enforcement proceedings were stayed.
In July 2011, following their resumption, the second applicant was paid the full amounts awarded in his favour.
3. As regards the third applicant (Mr Milan Mitić)
On 8 February 2001 and 7 February 2002 the Majdanpek Municipal Court ruled in favour of the third applicant and ordered the debtor to pay him the salary arrears due between 1 April 1998 and 28 February 2000, plus statutory interest, as well as his legal costs.
By 12 April 2002 these judgments became final.
On unspecified dates, the third applicant filed separate requests for the enforcement of the above judgments before the Majdanpek Municipal Court.
On 19 June 2001 and 13 November 2003, respectively, the court accepted the third applicant’s requests and issued the enforcement orders.
On 20 February 2006 the enforcement proceedings were stayed.
In May 2011, following their resumption, the third applicant was paid the full amounts awarded in his favour.
4. As regards the fourth applicant (Mr Bora Lazarević)
On 23 October 2001 the Majdanpek Municipal Court ruled in favour of the fourth applicant and ordered the debtor to pay him the salary arrears due between 1 December 1998 and 31 December 1999, plus statutory interest, as well as his legal costs.
By 22 November 2001 this judgment became final.
On 27 February 2002 the fourth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
On the same date the court accepted the fourth applicant’s request and issued the enforcement order.
On 20 February 2006 the enforcement proceedings were stayed.
In August 2011, following their resumption, the fourth applicant was paid the full amounts awarded in his favour.
5. As regards the fifth applicant (Mr Milorad Antonijević)
On 11 September 2002 the Majdanpek Municipal Court ruled in favour of the fifth applicant and ordered the debtor to pay him the salary arrears due between 19 December 1997 and 28 March 2002, plus statutory interest, as well as his legal costs.
By 24 October 2002 this judgment became final.
On 30 October 2002 the fifth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
On 1 November 2002 the court accepted the fifth applicant’s request and issued the enforcement order.
In the course of 2003 and 2004, the debtor covered a part of the fifth applicant’s claims.
On 3 February 2006 the enforcement proceedings were stayed.
In August 2011, following their resumption, the fifth applicant was paid the full amounts awarded in his favour.
6. As regards the sixth applicant (Mr Goran Pobrić)
On 7 December 2005 the Majdanpek Municipal Court ruled in favour of the sixth applicant and ordered the debtor to pay him compensation for the non-pecuniary damage suffered due to a labour-related injury, plus statutory interest, and his legal costs.
By 31 March 2006 this judgment became final.
On 1 July 2006 the sixth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
On 14 July 2006 the court accepted the fifth applicant’s request and issued the enforcement order.
On 30 August 2006 the enforcement proceedings were stayed.
In May 2011, following their resumption, the sixth applicant was paid the full amounts awarded in his favour.
7. Other relevant facts as regards all applicants
None of the applicants ever filed an appeal with the Constitutional Court, seeking compensation for any non-pecuniary damages suffered due to the length of the enforcement proceedings in question.
8. The debtor’s status
As of April 2013, the debtor is company predominantly comprised of socially-owned capital and is currently still in the process of being restructured.
B. Relevant domestic law
1. The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
Article 32 § 1 provides, inter alia, for a right to a hearing within a reasonable time in the civil and in the criminal contexts.
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 (Zakon o Ustavnom sudu; published in OG RS nos. 109/07 and 99/11)
The relevant provisions of this Act read as follows:
Article 82 § 2
“A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.”
Article 84 § 1
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”
3. The Constitutional Court’s relevant case-law
The Constitutional Court has routinely awarded compensation for any non-pecuniary damage suffered to appellants whose right to a hearing within a reasonable time had been breached, including in cases where the impugned civil proceedings had been brought before the entry into force of the new Constitution but continued thereafter (see, among many other decisions, Už. nos. 391/08, 143/09, 1387/09, 5466/10, 1063/12, 5660/12 of 9 April 2009, 17 March 2010, 17 February 2011, 20 December 2012, 30 May 2012 and 7 February 2013, respectively).
4. The Opinion adopted by the Supreme Court of Cassation on 24 February 2011 with its reasoning of 25 March 2011 (Pravno shvatanje Vrhovnog kasacionog suda)
In this Opinion the Supreme Court of Cassation held that enforcement proceedings concerning the payment of all work-related pecuniary claims, which have been established by final court judgments, shall not be stayed even where the debtor is being restructured as part of the privatisation process.
COMPLAINTS
The applicants complain, under Article 6 § 1 of the Convention, about the length of the enforcement proceedings in their cases, respectively, and seek compensation for the non-pecuniary damage suffered.
QUESTIONS
1. Could an appeal provided for under Article 170 of the Serbian Constitution (ustavna žalba), in a case such as the applicants’ specifically, be considered effective within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011; and Marinković v. Serbia (dec.), no. 5353/11, 29 January 2013)? In particular and in this context exclusively, should a constitutional appeal be exhausted in a situation where the final judgments rendered in favour of the applicants have, in the meantime, been fully enforced against a socially-owned company, but where the applicants have continued complaining before the Court about the length of the enforcement proceedings in question and are seeking compensation for the non-pecuniary damage suffered in this regard (see the attached statement of facts at B.3)?
2. Has there been a violation of Article 6 § 1 of the Convention? In particular, was the length of the enforcement proceedings at issue in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Vlahović v. Serbia, no. 42619/04, §§ 77(i), 78 and 87, 16 December 2008)?
3. The Government are invited to provide the Court with information as to whether Rudnik bakra Majdanpek is still a company predominantly comprised of socially-owned capital. The Government should also provide any relevant documentation in this respect.
APPENDIX
No.
App. nos.
Lodged on
Applicant’s name
Date of birth
Place of residence
Represented by
Practising in
53736/08
30/10/2008
Ilija RIĐIĆ
14/11/1962
Žagubica
Miomir RALEVIĆ
Majdanpek
53737/08
30/10/2008
Slobodan SRBU
27/03/1957
Majdanpek
Miomir RALEVIĆ
Majdanpek
14271/11
04/02/2011
Milan MITIĆ
27/07/1962
Gornji Vrtogoš
Svetlana COKIĆ
Majdanpek
17124/11
08/02/2011
Bora LAZAREVIĆ
26/05/1945
Majdanpek
Milorad BOJČEVIĆ
Majdanpek
24452/11
08/03/2011
Milorad ANTONIJEVIĆ
24/03/1951
Donji Milanovac
Milorad BOJČEVIĆ
Majdanpek
36515/11
14/04/2011
Goran POBRIĆ
26/04/1977
Majdanpek
Ljiljana ANDRAŠ
Majdanpek
Full & Egal Universal Law Academy