SECOND SECTION
CASE OF
BJELAJAC v. SERBIA
(Application no.
6282/06)
JUDGMENT
This
version has been rectified under Rule 81 of the Rules of Court
STRASBOURG
September 2012
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 Bjelajac v. Serbia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Françoise Tulkens, President,
Dragoljub Popović,
Isabelle Berro-Lefčvre,
András Sajó,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
6282/06) against the Republic of Serbia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Serbian national, Ms Milja Bjelajac (“the applicant”),
on 2 February 2006.
The Serbian Government (“the Government”) were
represented by their Agent, Mr S. Carić.
The applicant alleged, in particular, that
because of the failure of the State to enforce final domestic decisions, her
property rights had been violated.
On 9 June 2009 the President of the Second
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the
parties, may be summarised as follows.
The applicant was born in 1935 and lives in Novi Sad.
The applicant is the owner of a
loft in an apartment building in Novi Sad. For some time she experienced
problems with a leaking roof, which made her living conditions difficult. In
addition, some neighbours had occupied the common premises of the building,
including the basement, the waste disposal room and the roof terrace.
A. As regards the repairs to the roof
On 7 May 1999 the Secretariat for Inspection
Affairs of the City of Novi Sad (Sekretarijat za inspekcijske poslove Grada
Novog Sada - “the Secretariat”) issued a decision ordering JKP Stan, a
State-run public corporation (“the company”), to undertake all the necessary
work to the roof above the applicant’s flat.
When the decision of 7 May 1999 became final, the
applicant sought its enforcement. The Secretariat failed to respond to her
enforcement request, as did the second-instance administrative authority - the
Executive Board of the City Assembly of Novi Sad (Izvršni odbor Skupštine
grada Novog Sada - “the Executive Board”). Therefore the applicant filed an
administrative complaint requesting the Municipal Court in Novi Sad (“the
Municipal Court”) to order the administrative authorities to enforce the
decision of 7 May 1999.
The applicant also lodged a civil claim with the
Municipal Court, requesting the company to perform the necessary repairs.
On 20 June 2002 the Municipal Court, in the
civil proceedings, granted the applicant’s request, ordering the company to carry
out the necessary repairs. The court also ordered the company to pay to the
applicant the amount of 11,447 Serbian dinars (RSD), with statutory
interest, for the cost of painting the walls of her flat, and the amount of RSD
15,120 for the costs of the civil proceedings. That decision became final on a
later, unspecified, date.
On 9 July 2003 the Municipal Court, in the
proceedings following the administrative complaint, ordered the competent
municipal authority to decide on the enforcement of the decision of 7 May 1999.
On 27 October 2003 the
Secretariat issued an order (zaključak) for the enforcement of the
decision of 7 May 1999, at the same time stating that the repairs should be
paid for by the tenants’ assembly (skupština stanara) of the applicant’s
building. It would appear, however, that no further steps have been taken to
enforce the Secretariat’s decision.
On 20 January 2004 the applicant filed a request
with the Municipal Court requesting enforcement of the judgment of 20 June
2002.
On 8 February
2005 the Municipal Court partly granted the applicant’s enforcement request. In
the enforcement order, the court defined the repairs to be done, at the same
time providing that should the company fail to carry out the repairs in a
timely manner, the applicant was authorised to engage a third person to perform
the repairs, at the company’s expense. The court also awarded the applicant the
amount of RSD 1,458 for the costs of the enforcement proceedings.
However, it transpired that with her request for
enforcement the applicant had supplied an incorrect bank account number, and
therefore the transfer of the sums awarded could not be made. Hence, on 4 March
2005 the Municipal Court issued a request to the applicant for her correct bank
details. On at least three occasions the court attempted to serve this request
on the applicant, but to no avail.
Ultimately, the applicant provided her correct
bank account number on 23 November 2005.
On 7 July 2006 the Municipal Court issued an
order (zaključak) requesting the applicant to supply a
specification of costs for the repairs to be done. On five occasions the court
tried to serve this order on the applicant via bailiffs and the regular postal
service. To this end the court requested the police to intervene and serve the
applicant with the said order.
On 15 January 2007 the police found the
applicant at her home and served her with the order of 7 July 2006.
On 30 January 2007 the applicant supplied a cost
specification, and on 2 February 2007 the Municipal Court supplemented the
decision of 8 February 2005 (see paragraph 15 above), ordering the company
to deposit the amount specified by the applicant to enable her to hire a third
person to perform the repairs.
By 12 June 2007 the company had, however,
performed the necessary repairs itself.
On 23 October 2007 the company
paid the applicant the amount of RSD 24,000 (approximately EUR 300 at the relevant
time), by way of “reimbursement” (naknada). However, it is not clear
what were the exact legal grounds for this reimbursement.
On 29 October 2007 an expert appointed by the
Municipal Court confirmed that the enforcement had been performed as ordered by
the judgment of 20 June 2002.
On 16 January 2008 the court decided to
discontinue the enforcement proceedings, as the judgment of 20 July 2002 had
been enforced. It would appear that the applicant did not file an appeal
against that decision.
B. As regards the common premises
On 16 and 18 June 1999 the Secretariat issued
several decisions whereby the applicant’s neighbours S.M, M.P., M.Š., B.O.,
A.V., Đ.S. and M.S. were ordered to vacate the common premises of the
building.
On 14 July 1999 the tenants’
assembly decided, inter alia, to authorise S.M., M.P., B.O., A.V. and
Đ.S. to use the former garbage shaft access rooms (“bivši slivnici za
đubre”), Đ.S. and M.S. to use small compartments in the common
basement (“boksovi u skloništu”), while S.M and M.Š. were authorised to
use niches at the common terrace, adjacent to their respective bathrooms (“deo
prostora na zajedničkoj terasi-krovu u udubljenju ispred njihovih
kupatila”). The right to use the premises was not transferable, while the authorisation
was given against the obligation of the persons concerned to pay a certain fee.
However, regardless of that authorisation, on 17
January 2000 the Executive Board upheld the Secretariat’s decisions of 16 and
18 June 1999.
On 26 August 1999 and 3 September 1999 the
applicant filed separate administrative requests seeking enforcement of the
decisions of 16 and 18 June 1999.
As the Secretariat and the
Executive Board failed to respond to the applicant’s requests, on 9 July 2003
the Municipal Court in Novi Sad issued a judgment ordering the competent
municipal authority to rule on the applicant’s enforcement requests. At the
same time the Municipal Court refused the applicant’s claim in respect of
damage suffered due to the non-enforcement, and instructed her to lodge a
separate civil claim in that regard.
As it appeared that the municipal authority had
still not decided on the applicant’s request for enforcement, on 6 August 2004
the Municipal Court issued an enforcement order regarding the judgment of 9
July 2003, that is, ordering the municipal authority to rule on the applicant’s
enforcement requests.
Subsequently it transpired that
the Secretariat had decided on the applicant’s request and ordered the said
enforcements on 27 October 2003. Therefore, on 13 September 2004 the Municipal
Court discontinued the proceedings for the enforcement of the judgment of 9
July 2003, as the necessary decisions had been adopted.
It would appear that no further action has been
taken in order to evict the tenants from the common premises of the building,
which they continue to occupy.
C. As regards the applicant’s pension
On 21 October 2005, 25 May 2006 and 21 November
2008 the Municipal Court in Novi Sad issued decisions whereby part of the
applicant’s pension was to be withheld on account of her failure to pay monthly
common charges for the maintenance of the building in question.
The decisions of 21 October 2005 and 25 May 2006
have become final, as the applicant did not appeal against them. The decision
of 21 November 2008, according to the information in the case file, is yet
to become final, as it appears that it could not be served on the applicant.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. Relevant provisions concerning enforcement in civil
proceedings
The relevant provisions of domestic legislation
regarding the enforcement of judgments are cited in EVT Company v. Serbia
(no. 3102/05, 21 June 2007) and Ilić v. Serbia (no. 30132/04, 9
October 2007).
B. Relevant provisions concerning ownership of common
premises
According to Article 19 of the Property Act (Zakon
o osnovama svojinskopravnih odnosa, published in the
Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/80 and
36/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia
- OG FRY - no. 29/96 and the Official Gazette of the Republic of Serbia - OG RS
- no. 115/05), the common parts of a building are owned mutually and
indivisibly by the owners of the flats in the building.
Article 14 of the Buildings Maintenance Act (Zakon
o održavanju stambenih zgrada, published in OG RS nos. 44/95, 46/98, 1/01
and 101/05), provides that the tenants’ assembly decides, inter alia, on
the use of common premises in a building. Article 17 § 1 of the Act provides
that the tenants’ assembly may pass decisions if more than half of its members
are present. Decisions concerning regular maintenance of the building are
adopted by a simple majority of members present. Article 17 § 3 provides that
decisions concerning investments in the building must be adopted by a majority
of the tenants who own more than half of the total surface area of the flats
and other separate parts of the building. Article 18 § 1 of the Act provides
that the tenants owning the majority of the surface area of the building can
decide to undertake repairs to the flat roof, while Article 21 states that such
a majority may decide that the common premises may be transformed for purposes
other than those they were originally planned for.
In a decision of 17 March 2011
the Constitutional Court found the provisions of Articles 18 § 1, 21 § 3 and 22
§ 2 of the Buildings Maintenance Act not to be in conformity with the
protection of property guaranteed by the Constitution. The court found that
decisions regarding issues which concern changes in the use of common premises
could only be adopted by a unanimous vote of all the owners of the flats in the
building, and found that allowing the owners of the majority of the surface
area to make such decisions was not in conformity with the Serbian
Constitution, or with the provisions of Article 1 of Protocol No. 1 to the
European Convention on Human Rights.
C. Relevant provisions concerning administrative
proceedings
Article 208 § 1 of the General Administrative Proceedings
Act (Zakon o opštem upravnom postupku, published in OG FRY nos. 33/97
and 31/01) provides, inter alia, that in simple matters an
administrative body is obliged to issue a decision within one month of the date
the claimant lodged his or her request. In all other cases, the administrative
body must render a decision within two months thereof.
Article 208 § 2 enables a claimant whose request
has not been decided within the periods established in the previous paragraph
to lodge an appeal as if his or her request had been refused. Where an appeal
is not allowed, the claimant has the right to directly lodge an administrative complaint
with the competent court of law.
Article 274 states that enforcement of
non-monetary obligations, should the debtor refuse to comply with a decision
him- or herself, is conducted by compulsion - by means of engaging, at the
debtor’s expense, a third person to undertake the necessary measures for
enforcement. Article 267 § 1 states that enforcement is to be conducted
before the first-instance administrative body, unless otherwise provided
by law, while Article 267 § 3 provides that the police must assist the
enforcement, if required. Article 271 provides that an administrative
enforcement must be discontinued should it be established: that the obligation
has been fully complied with; that the enforcement has not been allowed; that
it was ordered against a person who was not under any obligation to comply;
that the claimant has withdrawn his or her request; or that the administrative
enactment which is being enforced has been annulled or quashed.
In addition, the Supreme Court has held that,
pursuant to Article 264 § 3 of the General Administrative Proceedings Act,
enforcement of eviction orders is to be carried out of the court’s own motion
in view of the compelling public interest in this regard, even in the absence
of a formal enforcement request filed by the claimant personally (see, for
example, Vrhovni sud Srbije, Ubr. 6613/95).
THE LAW
The applicant complained of a breach of her
property rights in connection with the failure of the respondent party: to
enforce the judgment of the civil court; to enforce the administrative
decisions; and in relation to the seizure of her pension. The Court considers
that these complaints fall to be examined under Article 1 of Protocol No. 1 to
the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.
1 TO THE CONVENTION CONCERNING THE NON-ENFORCEMENT OF THE JUDGMENT OF THE CIVIL
COURT
A. Admissibility
The Government submitted that since the repairs
had been fully done, and the applicant had been paid an amount for pecuniary
damage (see paragraphs 15 and 22 above), she could no longer claim to be a
victim.
The Court reiterates that “a decision or measure
favourable to the applicant is not in principle sufficient to deprive him of
his status as a ‘victim’ unless the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the breach of
the Convention” (see Amuur v. France, 25 June 1996, § 36, Reports 1996-III;
Dalban v. Romania [GC], no.
28114/95, § 44, ECHR 1999-VI; and Rotaru
v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these
conditions are satisfied does the subsidiary nature of the protective mechanism
of the Convention preclude examination of an application (see, for example, Jensen and Rasmussen v. Denmark
(dec.), no. 52620/99, 20 March 2003).
The Court observes that the mere fact that the
authorities complied with the judgment after a substantial delay cannot be
viewed in this case as automatically depriving the applicant of her victim
status under the Convention. Even assuming that the amount paid to the
applicant on 27 October 2007 covers the entirety of the pecuniary damage
suffered by the applicant due to the prolonged non-enforcement of the judgment
of 20 June 2002, neither the Government nor the other domestic authorities
have acknowledged that the applicant’s Convention rights were unjustifiably
restricted by the non-enforcement of that judgment and no redress has been
offered to the applicant for the delays, as required by the Court’s case-law
(see, for example, Petrushko
v. Russia, no. 36494/02, § 16, 24 February 2005).
Accordingly, the Court rejects the Government’s
objection as to the loss of victim status.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant maintained that the civil court
judgment constituted a “possession” within the meaning of Article 1 of Protocol
No. 1. The Government reiterated that since the decision of 27 October 2003 had
ordered the costs of the repairs to be covered by the tenants of the building
(see paragraph 13 above), the applicant could not have had a legitimate
expectation within the meaning of this provision.
The Court reiterates that a “claim” can
constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if
it is sufficiently established to be enforceable (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and Stran
Greek Refineries and Stratis Andreadis v. Greece, 9 December
1994, § 59, Series A no. 301-B), and this was undoubtedly the case here, since
both the administrative decision and the court judgment ordered the repairs to
the roof to be carried out, while the issue of who was to pay for the repairs
was never raised during the enforcement proceedings before the Municipal Court
as a result of which the applicant finally managed to have the roof above her
flat repaired.
The applicant filed a request for enforcement on
20 January 2004, while the Convention entered into force in respect of Serbia on 3 March 2004. From the date of ratification until the final enforcement of the
judgment on 12 June 2007, when the company finally undertook all the repairs,
three years and three months passed. Two significant periods of inactivity were
attributable to the applicant - from 8 February 2005 until 23 November
2005, and from 7 July 2006 until 15 January 2007, when the applicant was
not available to the courts to be served with decisions. However, the failure
to act in the periods from 3 March 2004 to 8 February 2005, from 23 November
2005 to 7 July 2006, and from 15 January to 12 July 2007, which amounts to
two years of inactivity, cannot be said to be attributable to the applicant.
It follows that the impossibility for the
applicant to have the judgment enforced for a substantial period of time, given
that two years of inactivity were not attributable to her, constituted an
interference with her right to peaceful enjoyment of her possessions, as set
forth in Article 1 of Protocol No. 1.
The Court further notes that the
Government, while providing a justification for a certain part of the period of
non-enforcement, failed to provide justification for the two years of
inactivity not attributable to the applicant. On the other hand, the Court
itself cannot find any information which would justify such a delay. Finally,
the Court notes that this conclusion makes it unnecessary to ascertain whether
a fair balance has been struck between the demands of the general interest of
the community, on the one hand, and the requirements of the protection of the
individual’s fundamental rights on the other (see Iatridis v. Greece [GC], cited
above, § 58 and Ilić v. Serbia, no. 30132/04, § 75, 9 October 2007). Consequently, it must be concluded that the
interference with the applicant’s right to peaceful enjoyment of her
possessions was not justified (see Prodan v. Moldova, no. 49806/99, § 61,
ECHR 2004-III (extracts)), and that there has, accordingly, been a
violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
NO. 1 TO THE CONVENTION CONCERNING THE NON-ENFORCEMENT OF THE ADMINISTRATIVE
DECISIONS
The applicant also complained of a breach of her
property rights because of the failure to enforce the administrative decisions
of 16 June and 18 June 1999.
The Court considers that, prior to examining
whether the final administrative decisions in the applicant’s favour have been
enforced, it must first determine whether this complaint is admissible under
Article 35 § 3 (b) of the Convention, which reads as follows:
“3. The Court shall declare inadmissible any
individual application submitted under Article 34 if it considers that:
(...)
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the application
on the merits and provided that no case may be rejected on this ground which
has not been duly considered by a domestic tribunal.”
Hence, the Court will examine of its own motion
whether: (i) the applicant has suffered a significant disadvantage;
(ii) whether respect for human rights as defined in the Convention and the
Protocols thereto requires an examination of the application on the merits; and
(iii) whether the case was duly considered by a domestic tribunal.
The Court has previously held that the
“significant disadvantage” criterion applies where, notwithstanding a potential
violation of a right from a purely legal point of view, the level of severity
attained does not warrant consideration by an international court (see Adrian
Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; Korolev
v. Russia (dec.), no. 25551/05, 1 July 2010; and Gaftoniuc
v. Romania, cited
above). Further, the level of severity shall be assessed in the light of the
financial impact of the matter in dispute and the importance of the case for
the applicant.
In the circumstances of the present case, the
Court notes from the outset that, according to the domestic law, the applicant,
together with the owners of all other flats in the building, has a share of the
ownership of all common premises. However, the nature of those common premises
is such that some of their parts were equally used by all the tenants, while
some others have been used by only some or none of them. As it transpires from
the decision of 14 July 1999 (see paragraph 26 above) allocation of the common areas to the tenants concerned was done in
relation to small and limited parts of the common premises, apparently without
prejudice or disturbance to other tenants, including the applicant herself -
indeed, the allocation of some of these surfaces appeared to have been aimed at
securing more privacy for certain tenants (i.e. niches adjacent to certain
tenants’ bathrooms), while some others would appear to have no longer been used
for their original purpose (garbage shaft). Furthermore, the right of use was
made strictly personal, not allowing the tenants concerned to transfer this
right in case of transfer of possession over their respective flats. Finally, the
applicant has never claimed that the apparent restriction in the use of these
particular areas has ever been to her disadvantage or discomfort, nor has she
sought to demonstrate that the enjoyment of her property rights over her own flat,
or the common premises which she actually used, has in any way been impaired by
the fact that a portion of the common premises has been occupied by any
particular tenant.
The Court has already held that the limitation
of property rights must not be measured in abstract terms and must be assessed
against a person’s individual circumstances and the economic situation of the
country or region in which he or she lives (see e.g. Fedotov v. Moldova (dec)
§ 19, 24 May 2011). However, while taking into account such varying
circumstances, the Court considers it to be beyond doubt that a portion of the common
premises, allocated to certain tenants for their sole use, and in no way interfering
with the applicant’s enjoyment of her own flat or causing any financial impact
on the applicant herself, could not have represented a significant disadvantage.
Moreover, the Court observes that a complaint of
non-enforcement of a final domestic decision, already subject of the Court’s
well-established case-law, does not concern an important question of principle,
which might justify examining it any further.
Lastly, noting that the applicant’s claims have
been thoroughly examined, in both administrative and judicial proceedings, and
that furthermore the Constitutional Court undertook to strengthen the
protection of ownership rights over common premises of buildings, by determining
that the change in the use of common premises required approval of each owner (see
paragraph 38 above), it may not be said that the applicant suffered a denial of
justice by the actions of the respondent State. The Court, thus, concludes
that the applicant’s case was duly considered by a domestic tribunal within the
meaning of Article 35 § 3 (b).
Consequently, this complaint must be rejected
inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained of a violation
of her property rights through the seizure of her pension.
The Court notes that the applicant has not
appealed against any of the decisions regarding the seizure of her pension, the
one of 21 November 2008 not yet being served upon her. The Court sees no
special circumstances absolving the applicant from the obligation to use
available and effective domestic remedies (see Akdivar
and Others v. Turkey, 16 September 1996, § 67, Reports 1996-IV). Therefore, this
complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
The applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call to award
her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the
non-enforcement of final domestic judgment of 20 June 2002 admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention in respect of the protracted
enforcement of the civil court judgment.
Done in English, and notified in writing on 18 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy Registrar President
