SECOND SECTION
DECISION
Application no. 29514/08
by Milka ŽIVKOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 13 September 2011 as a Committee composed of:
András Sajó, President,
Dragoljub Popović,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 5 May 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Milka Živković, is a Serbian national who was born in 1954 and lives in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
On 25 February 1992 the applicant’s employer published a list according to which it was decided that the applicant would not be allocated an apartment from the employer. On 27 July 1992 the applicant filed a lawsuit against the employer and two of her colleagues who were allocated apartments according to the said list, requesting annulment of these allocations.
Following three remittals, on 1 September 2006 the Second Municipal Court in Belgrade rejected the applicant’s request.
On 24 October 2007 District Court in Belgrade partly altered the ruling of the Second Municipal Court, however still rejecting the applicant’s request in substance. On 14 May 2008 the Supreme Court upheld the judgment of 1 September 2006.
THE LAW
The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the proceedings upon a property related suit she filed against a third party, as well as about the outcome of the proceedings. Under Article 1 of Protocol No. 1 she further complained about the violation of her property rights.
1. By a letter dated 29 April 2011 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 and 13 of the Convention and offer to pay to the applicant, Milka Živković, the amount of EUR 600 in respect of the application registered under no. 29514/08 before the European Court of Human Rights.
This sum, which covers any pecuniary and non-pecuniary damage as well as costs, shall be paid in dinar counter-value, free of any taxes that may be applicable, within three months from the date of delivery of the [decision] by 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. ”
In a letter of 23 May 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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, and a right to a remedy for such procedural delay (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; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Nemet v. Serbia, no. 22543/05, §§ 17-18, 8 December 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, the amount of compensation proposed – which is consistent with the amounts awarded in similar cases, bearing in mind the fact that the proceedings have been pending within the Court’s competence ratione temporis for four years and two months (as the Convention entered into force in respect of Serbia on 3 March 2004) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
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 this complaint (Article 37 § 1 in fine).
2. As to the alleged violation of Article 1 of Protocol No. 1 to the Convention, the Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as there is at least a “legitimate expectation” that rights to a possession will be realised, that is, that he or she will obtain effective enjoyment of a property right. However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest which must itself be sufficiently established (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002-VII, § 69, and Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-53, ECHR 2004-IX), and it is not sufficient for an applicant to rely on the existence of a “genuine dispute” or an “arguable claim” (Kjartan Ásmundsson v. Iceland, no. 60669/00, §§ 37-38, ECHR 2004‑IX). The aim of the proceedings the applicant had instituted was indeed to annul an allocation list, according to which third persons were given certain property rights. Only if this list had been annulled could the applicant have requested that she be allocated an apartment. Therefore the Court must conclude that the applicant’s claim to have such a list annulled could not have constituted a possession within the meaning of Article 1 of Protocol No. 1. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the complaint of length of civil proceedings of out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the reminder of the application inadmissible.
Françoise Elens-PassosAndrás Sajó
Deputy RegistrarPresident
Full & Egal Universal Law Academy