SECOND SECTION
DECISION
Application no. 24190/08
Ivan ZAHARIEV
against Serbia
The European Court of Human Rights (Second Section), sitting on 9 July 2013 as a committee composed of:
Paulo Pinto de Albuquerque, President,
Dragoljub Popović,
Helen Keller, judges,
and Atilla Nalbant, Acting Deputy Section Registrar,
Having regard to the above application lodged on 24 April 2008,
Having regard to the declaration submitted by the respondent Government on 12 December 2012 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 Ivan Zahariev, is a Serbian national, who was born in 1936 and lives in Niš.
The facts of the case, as submitted by the applicant, may be summarised as follows:
The applicant lodged a civil suit for compensation of damages against a private company (“the company”) on 15 March 1996.
On 20 February 2003 the Municipal Court (“Četvrti opštinski sud“) in Belgrade ruled partly in the favour of the applicant, awarding him compensation for unjust enrichment (neosnovano obogaćenje). This part of the judgment became final on 14 June 2003 and on 3 March 2004 the Municipal Court issued the enforcement order.
On 12 February 2007, following two remittals, the Municipal Court ruled partly in favour of the applicant in respect of the remainder of his claim and awarded him the compensation of damages against the company.
On 21 November 2007 the District Court (Okružni sud), upon the applicant’s appeal, amended in part the Municipal Court judgment of 12 February 2007 and ruled in favour of the applicant with regard to the remainder of his claim. In addition, the District Court remitted the Municipal Court judgment in part concerning the costs of the proceedings.
On 30 November 2007 the Municipal Court awarded the applicant the costs of the proceedings.
The Municipal Court judgment of 12 February 2007 as amended by the District Court judgment of 21 November 2007 and the Municipal Court decision of 30 November 2007 became final on 6 December 2007. On 24 April 2008 the Municipal Court issued an enforcement order.
On 24 July 2008 the Municipal Court (Opštinski sud) in Niš granted the applicant’s request to change the means of enforcement of all of the above enforcement titles by seizure and sale of the company’s property.
On 27 September 2010, however, the Court of First Instance (Osnovni sud) in Niš, now acting as the competent court, terminated the enforcement proceedings due to the company’s bankruptcy.
On 5 December 2011 the Commercial Court (Privredni sud) in Belgrade, in the insolvency proceedings against the company, recognised the applicant’s claim and his secured interest in the company’s assets. It would appear that the applicant has yet to realize this claim.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings for determination of his civil claim against a private company.
THE LAW
After the failed attempt to reach a friendly settlement, by a letter of 12 December 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I declare that the Government of the Republic of Serbia is 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 Ivan Zahariev, the amount of EUR 1,620 (one thousand six hundred twenty euros) to cover any and all non-pecuniary damage plus any tax that may be chargeable to the applicant in respect of the application registered under no. 24190/08 before the European Court of Human Rights.
This sum shall be payable within three months from the date of delivery of the decision of 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.”
The applicant made no comment.
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 where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Serbia, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II; and Nemet v. Serbia, no. 22543/05, §§ 17-18, 8 December 2009).
The Court recalls that Article 6 § 1 of the Convention requires that all stages of legal proceedings for the “determination of ... civil rights and obligations”, not excluding stages subsequent to judgment on the merits, be resolved within a reasonable time (see Estima Jorge v. Portugal, 21 April 1998, § 35, Reports of Judgments and Decisions 1998‑II; Robins v. the United Kingdom, 23 September 1997, § 28, Reports of Judgments and Decisions 1997‑V). Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). Turning to the present case, the Court considers that the relevant period began on 15 March 1996 when the applicant lodged his civil claim and ended on 27 September 2010, when the domestic courts terminated the enforcement proceedings.
Having regard to the nature of the admissions 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 the impugned proceedings were within this Court’s competence ratione temporis for only six years and six months (Serbia having ratified the Convention on 3 March 2004), during which time the domestic courts in two instances determined the applicant’s civil claim, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Turning to the nature of the proposed redress, the Court interprets the Government’s declaration as meaning that the compensation proposed is to be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention and that, in the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, the application should be struck out of the list of cases.
It is to be noted that this 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 emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention.
Atilla NalbantPaulo Pinto de Albuquerque
Acting Deputy Registrar President
Full & Egal Universal Law Academy