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SECOND
SECTION
CASE OF DORIĆ v. SERBIA
(Application
no. 33029/05)
JUDGMENT
STRASBOURG
27 January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dorić v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33029/05)
against the State Union of Serbia and Montenegro, lodged with the
Court, under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”), by,
at that time, a citizen of the State Union of Serbia and Montenegro,
Mr Slobodan Dorić (“the
applicant”), on 13 September
2005.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- The
Government of the State Union of Serbia and Montenegro and,
subsequently, the Government of Serbia (“the Government”)
were represented by their Agent, Mr S. Carić.
- On
6 December 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Belgrade.
- On
30 June 1988 the Municipality of VoZdovac, where the applicant was
employed as a clerk, issued a decision leaving the applicant
unassigned to a specific post, which ultimately resulted in his
dismissal.
- On
7 October 1988 the applicant thus filed a suit against the
Municipality, seeking reinstatement and
salary arrears.
- On
24 January 1989 the Labour Court (Osnovni
sud udruZenog rada) in Belgrade
ruled against the applicant, and by 18 May 1989 this decision became
final.
- The
applicant subsequently twice requested the re-opening of the
proceedings (podneo predlog za ponavljanje postupka), but to
no avail.
- On
13 January 1992 the applicant filed a third request of this sort and
on 19 March 1996 the Fifth Municipal Court
(Peti opštinski sud)
in Belgrade (hereinafter “the Municipal Court”),
to which the case had been transferred, finally decided to have his
case re-opened.
- Between
9 October 1997 and February 2004, the Municipal Court obtained four
expert reports concerning the exact amount of salary arrears owed to
the applicant, as well as the accrued statutory interest.
- Following
two remittals, on 4 July 2006 the Municipal Court rejected the
applicant's request for reinstatement, but partly granted his
pecuniary claim.
- On
27 June 2007 the District Court (OkruZni sud) in Belgrade
(“the District Court”) ordered the
applicant's reinstatement, but quashed
the remainder of the judgment rendered
at first instance and ordered
a retrial.
- On
6 March 2008 the Supreme Court (Vrhovni
sud Srbije) rejected the
respondent's appeal on points of law (revizija).
- The
proceedings before the Municipal Court thereafter continued in
respect of the applicant's pecuniary claim only. Following two
additional expert reports which had been provided, on 28 June 2008
the Municipal Court again ruled partly in favour of the applicant.
- On
17 July 2008 the respondent Municipality filed an appeal against this
judgment. According to the information
made available to the Court by the parties to date, the case is
apparently still pending before the District Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the proceedings in question had been incompatible with
the “reasonable time” requirement. He further complained
under Article 13 of the Convention that he had no
means to expedite the proceedings in question or obtain compensation
for the past delay.
- The
Government raised various objections to the admissibility of these
matters. However, the Court has rejected similar objections in many
previous cases (see, for example, Cvetković
v. Serbia, no. 17271/04, §§ 38
and 42, 10 June 2008; Tomić v. Serbia, no. 25959/06,
§§ 81 and 82, 26 June 2007; V.A.M. v. Serbia,
no. 39177/05, §§ 85 and 86, 13 March 2007). It
finds no particular circumstances in the instant case which would
require a departure from this jurisprudence. It therefore declares
these complaints admissible.
- The
Government further stated that there had been no violation of
Articles 6 and 13 of the Convention.
- As
regards the applicant's complaint about the protracted length of the
proceedings, the Court observes that the impugned proceedings have
been within the Court's competence ratione temporis for a
period of more than four years and ten months and would appear to be
currently still pending at second instance. On 3 March 2004, the date
when the Convention came into force in respect of Serbia, it had
already been pending for more than fifteen years and four months. The
Court notes that the applicant's case was not particularly complex
and finds that the repeated financial expertise was only needed to
calculate the applicant's salary arrears, as well as the statutory
interest, accrued in the course of the proceedings themselves.
- Having
regard to the criteria laid down in its jurisprudence, the Court is
of the opinion that the overall length of the impugned proceedings
has failed to satisfy the reasonable time requirement. There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
- Moreover,
having regard to its findings in respect of Article 6 § 1, as
well as its prior judgments on the issue (see, among many others,
Ilić v. Serbia,
no. 30132/04, 9 October 2007), the Court considers that, at
the relevant time, there was indeed no effective remedy under
domestic law for the applicant's complaint about the length of the
proceedings in question. There has, accordingly, been a violation of
Article 13 of the Convention.
II. APPLICATION OF ARTICLE
41 OF THE CONVENTION
- The applicant claimed RSD
2,766,768 and RSD 700,000 for
pecuniary and non-pecuniary damages,
respectively, RSD 626,850 for the costs and expenses incurred
before the domestic courts, and RSD 30,000 for those incurred in the
course of his Strasbourg case. The Government contested these claims.
- The
Court notes that the proceedings at issue are still pending and
finds, therefore, that the applicant's pecuniary claim must be
rejected. However, making an assessment on an equitable basis, the
Court awards the applicant EUR 3,500 in respect of the non-pecuniary
damage suffered, with default interest based on the marginal
lending rate of the European Central Bank, to which should be added
three percentage points.
-
Furthermore, regard being had to the
documents in its possession, the Court rejects the applicant's claim
for the costs and expenses incurred domestically, given that the
impugned proceedings would appear to be still pending and that the
costs and expenses in question could thus yet be recovered therein.
The Court moreover rejects, as
unsubstantiated, the applicant's claims for
costs before the Court.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares
the application admissible;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention;
- Holds
that there has also been a violation of Article 13 of the Convention;
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final, in accordance with Article 44 § 2
of the Convention, EUR 3,500 (three thousand five hundred
euros) in respect of the non-pecuniary damage
suffered, which sum is to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
