SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15433/07
by Darinka TATALOVIĆ and Rajko ĐEKIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 23 November 2010 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Kristina Pardalos,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 4 April 2007,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Darinka Tatalović and Mr Rajko Đekić, are Serbian citizens who were born in 1935 and 1932, respectively, and live in Belgrade. They are represented before the Court by Mr B. Mitrovski and Mr S. Jakovljević, lawyers practising in Belgrade.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1948 the property which is at issue in this case was nationalised pursuant to the 1948 Nationalisation of Private Entities Act, which provided for the nationalisation of all property belonging to foreign nationals.
On 2 July 1992 the applicants filed a property claim with the Belgrade Second Municipal Court against the local authorities. The applicants claimed that their predecessor had bought the disputed property in 1939 from B.B., a Czech citizen, and that therefore that property could not have been nationalised. The disputed fact in the case was the actual existence of the purchase contract, as it had allegedly been destroyed.
In the claim form, they assessed the monetary value of their claim at 6,000,000 “old dinars” (YUR - approximately 37,500 German marks (DEM) at the time)[1].
On 30 March 1998 the court ruled in favour of the applicants. That decision was upheld by the Belgrade District Court on 31 March 1999.
At the request of the Attorney General of Serbia, on 6 December 2000 the Supreme Court of Serbia quashed the judgments of 30 March 1998 and 31 March 1999 and remitted the case for a retrial.
On 9 March 2001 the applicants extended their claim to the State.
On 18 November 2003 the Belgrade Second Municipal Court ruled against the applicants. That decision was upheld by the Belgrade District Court on 10 November 2004.
On 28 September 2006 the Supreme Court rejected the applicants’ appeal on points of law (revizija) on the ground that they had failed to assess the monetary value of their claim in the claim form.
The applicants were served with the Supreme Court’s decision on 12 October 2006.
B. Relevant domestic law
1. Civil Procedure Act 1977 (Zakon o parničnom postupku; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91 and the Official Gazette of the Federal Republic of Yugoslavia nos. 27/92, 31/93, 24/94, 12/98 and 3/02)
The Civil Procedure Act 1977 was in force until 23 February 2005.
Article 186 § 2 provided that the monetary value of a claim was a mandatory element of a claim form in lawsuits not relating to pecuniary claims. Pursuant to Article 109 the court had to return a claim form to the claimant for correction if it did not contain all the mandatory elements.
Article 382 § 3 provided that an appeal on points of law (revizija) was inadmissible in lawsuits not relating to pecuniary claims where the value of the claim, as indicated in the claim form, did not exceed 15,000 new dinars (YUM - approximately 3,000 German marks (DEM) on 6 March 1998, at the time when this provision was introduced).
Lastly, in accordance with Articles 383 and 394-397, the Supreme Court, if it accepted an appeal on points of law, had the power either to amend the impugned judgment or to quash it and remit the case for a retrial.
2. Civil Procedure Act 2004 (Zakon o parničnom postupku; published in Official Gazette of the Republic of Serbia nos. 125/04 and 111/09)
The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 § 4 of the new Act, however, provides that in all pending cases the applicable legislation, as regards an appeal on points of law, is the old Act.
COMPLAINTS
1. The applicants complain, under Article 6 § 1 of the Convention, that they have been denied access to the Supreme Court in the determination of their civil rights and obligations.
2. Furthermore, the applicants complain, under Article 6 § 1 of the Convention, about the length of the domestic proceedings described above.
3. Lastly, the applicants complain, under Article 1 of Protocol No. 1 to the Convention, about the outcome of the domestic proceedings described above.
THE LAW
1. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicants’ first complaint, concerning access to court, and that is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. As regards the applicants’ second complaint, the Court notes that the impugned proceedings lasted less than three years after the ratification of the Convention (3 March 2004). In order to determine the reasonableness of the period in question, the Court must also take into consideration the state of the case on the date of ratification (see Bočvarska v. “the former Yugoslav Republic of Macedonia”, no. 27865/02, § 66, 17 September 2009). On that date, the case was pending before the second-instance court. Two decisions were rendered thereafter. Given that there existed no substantial periods of inactivity on the side of the domestic courts, this complaint is manifestly ill-founded.
3. Lastly, the applicants’ third complaint concerns, in essence, their dissatisfaction because they did not acquire the disputed property. In line with the findings of the domestic courts, the Court notes that the applicants did not have a sufficiently established claim to attract the protection of Article 1 of Protocol No. 1 to the Convention. Accordingly, this complaint is incompatible ratione materiae.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning access to court;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
[1] According to the exchange rates fixed by the then National Bank of Yugoslavia
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