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SECOND
SECTION
DECISION
Application no.
19424/07
Ljiljana PREDIĆ-JOKSIĆ
against Serbia
The
European Court of Human Rights (Second Section), sitting on 20 March
2012 as a Chamber composed of:
Françoise
Tulkens, President,
Dragoljub Popović,
Isabelle
Berro-Lefèvre,
András Sajó,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
regard to the above application lodged on 18 April 2007,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Ljiljana Predić-Joksić, is a dual Serbian and
Australian national who was born in 1949 and lives in Arncliffe,
Australia. The Serbian Government (“the Government”) are
represented by their Agent, Mr S. Carić.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The first set of proceedings
- On
15 January 1997 the applicant filed a civil suit in Serbia against
her two sisters, requesting the annulment of a contract according to
which their late mother disposed of her property prior to her death,
against the applicant’s expectations from the inheritance.
Following a remittal, on 20 April 2007 the Municipal Court
granted the applicant’s claim. On 6 August 2008 the
District Court quashed the judgment of 20 April 2007 and returned the
case to the first instance for a fresh examination.
- On
4 December 2008 the applicant lodged a constitutional appeal,
complaining about the length of the above-mentioned civil proceedings
and requesting the Constitutional Court to quash the decision of 6
August 2008. The applicant did not request the Constitutional Court
to award her any compensation for damages suffered.
- On
5 May 2011 the Constitutional Court adopted a decision finding that
the applicant’s right to have a hearing within a reasonable
time had been violated and ordered the first and second instance
courts to expedite the proceedings, while rejecting the request in
relation to the decision of 6 August 2008. The court also
ordered that its decision be published in the Official Gazette.
- On
14 June 2011 the decision of 5 May 2011 was published in the Official
Gazette.
- On
22 September 2011 the Court of First Instance (Prvi osnovni sud)
in Belgrade granted the applicant’s request in its entirety.
This judgment would appear to be pending on appeal.
2. The second set of proceedings
- On
2 April 2007 the applicant filed another civil suit against one of
her sisters, claiming damages for the sister’s sole use of the
property in question.
- The
court held a number of hearings and in February 2008 appointed an
expert to determine the damages. As the expert failed to submit his
full expert report by April 2009, the court fined him and by
September 2009 appointed another expert to submit his opinion on the
amount of damages.
- On
27 July 2009 the applicant filed a constitutional appeal complaining
about the length of the said proceedings as well as the right to a
fair trial and the right to property.
- On
15 July 2010 the Constitutional Court found that there had been no
violation of the applicant’s right to have her civil right
determined within a reasonable time, while the other complaints were
rejected as premature.
- It
would appear that these civil proceedings are still pending at first
instance.
B. Relevant domestic law and practice
1. The Constitutional Court Act (Zakon o Ustavnom sudu;
published in OG RS no. 109/07 and 99/11)
- The
Constitutional Court Act, in Article 89 §§ 2 and 3,
provides for the following:
“When the Constitutional Court finds that an ...
individual decision or action has violated or denied a human or
minority right or a freedom guaranteed by the Constitution, it shall
annul the ... decision in question or ban the continuation of such
action or order the implementation of other specific measures as well
as the removal of all adverse consequences within a specified period
of time.
The decision of the Constitutional Court accepting a
constitutional appeal shall constitute a legal basis for requesting
compensation or the removal of other adverse consequences before a
competent body, in accordance with the law.”
- Article
90 of the Constitutional Court Act provides that a person whose
constitutional appeal had been adopted can request compensation for
damages from the Commission for Compensation.
- On
26 December 2011 the Constitutional Court Act was amended, inter
alia to abolish the Commission for Compensation and provide that
the Constitutional Court would itself determine the compensation for
damage (Article 89 § 2), under the condition that a request to
that effect had been filed together with the constitutional appeal
(Article 85 § 3).
2. The Rules of the Commission for Compensation
(Pravilnik o sastavu i radu Komisije za naknadu štete na
osnovu odluke Ustavnog suda kojim je usvojena ustavna Zalba;
published in OG RS no. 27/08)
- Article
3 of the Rules provided for the right of a person to file a request
for compensation from the Commission should the Constitutional Court
find a violation in that person’s case.
3. Practice of the Constitutional Court and the
Commission for Compensation
- While it existed, it was a consistent practice of the
Commission for Compensation only to award damages if the
Constitutional Court had determined one’s right to
compensation. The Constitutional Court, in its turn, only awarded
compensation for damages should a person claim compensation in the
constitutional appeal (see e.g. decisions of the Constitutional Court
nos. UZ-372/2008 of 16 October 2008, UZ-536/2008 of 11 December 2008,
UZ-1685/2009 of 15 November 2009, UZ-151/2007 of 1 April 2010,
UZ-5088/2010 and many others; a contrario see e.g. decisions
nos. UZ-36/2007 of 22 December 2009, UZ-265/2008 of 22 December 2009,
UZ-204/2008 of 18 February 2010, UZ-201/2008 of 14 July 2010 and many
others).
COMPLAINTS
- The
applicant originally complained about the length of the first set of
civil proceedings. By a further submission of 6 January 2009 she also
complained about the length of the second set of proceedings.
- Moreover,
the applicant also complained about the violation of Article 8 of the
Convention and Article 1 of Protocol No. 1 in both sets of
proceedings.
THE LAW
A. The length of the first set of proceedings
- The
applicant’s first complaint relates to the length of the
proceedings, which began on 15 January 1997 and are still pending at
second instance. They have therefore already lasted for eight years
within the Court’s competence ratione temporis, as
Serbia ratified the Convention on 3 March 2004.
- The
Government submitted that by virtue of the decision of the
Constitutional Court of 5 May 2011 the applicant had lost her victim
status.
- The
applicant contested this claim.
- The Court reaffirms that a constitutional appeal
remains, in principle, a remedy to be exhausted, within the meaning
of Article 35 § 1 of the Convention, only in respect of
complaints introduced as of 7 August 2008 (see Vinčić
and Others v. Serbia, nos. 44698/06 et seq., § 51,
1 December 2009), whilst in respect of all complaints lodged
earlier, such as the application at hand, any redress provided by the
Constitutional Court shall be assessed through the prism of whether
the applicant can still be considered to be a victim within the
meaning of Article 34 (see Vidaković v. Serbia (dec.),
16231/07, 24 May 2011).
- The Court recalls that an applicant’s status as
a “victim” depends on the fact whether the domestic
authorities acknowledged, either expressly or in substance, the
alleged infringement of the Convention and, if necessary, provided
appropriate redress in relation thereto. Only when these conditions
are satisfied does the subsidiary nature of the protective mechanism
of the Convention preclude examination of an application (see
Cocchiarella v. Italy [GC], no. 64886/01, §
71, ECHR 2006 V; and Cataldo v. Italy (dec.), no.
45656/99, 3 June 2004).
- The
Court, in this respect, notes that the Constitutional Court found
that the applicant’s right to a determination of her claim
within a reasonable time had been violated – thereby
acknowledging the breach complained of and, effectively, satisfying
the first condition laid down in the Court’s case law.
- Furthermore,
the Court notes that the Constitutional Court ordered the applicant’s
proceedings to be expedited. Following the decision of the
Constitutional Court in May 2011, the Court of First Instance just
four months later, on 22 September 2011, decided on the applicant’s
case by granting her claim in its entirety. The proceedings would
appear to be currently pending at second instance, following the
defendants’ appeal. Considering the current status of the case,
namely that so far the case has been pending on appeal for six months
the Court cannot but conclude that the proceedings have been duly
expedited, the applicant’s victim status thus depending on
whether compensation for damages should have been afforded in the
particular circumstances of the present case.
- The
Court recalls that even though the applicant had not, in this
particular case, been expected to exhaust the constitutional remedy,
once she decided to avail herself of it she should have been aware of
the requirements in relation to obtaining an appropriate
compensation. The Court notes that it has been a consistent practice
of the Constitutional Court and the Commission for Compensation to
routinely award compensation in relation to complaints of
unreasonable duration of proceedings, should a person raise such a
request in the proceedings before the Constitutional Court (see e.g.
Vidaković v. Serbia, paragraph 24 above, as well as the
case law of the Constitutional Court, paragraph 17 above). The
applicant failed to submit such a request in her constitutional
appeal and has furthermore failed to justify such an omission. In the
presence of such a failure, the Constitutional Court found a
violation of the applicant’s right to have her civil right
determined within a reasonable time, in addition ordering the
decision to be published in the Official Gazette. It could not,
however, have decided on the compensation for damages, while the
applicant could not have had such expectations.
- In such circumstances, the Court considers that the
applicant’s claim in the constitutional appeal had been fully
upheld and that in such circumstances the applicant can no longer
claim to be a “victim” within the meaning of Article 34
of the Convention of the violation of her right to a hearing within a
reasonable time. Thus, the Court concludes that the applicant is no
longer a victim of the alleged violation and that this part of the
application must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
B. The length of the second set of proceedings
- By
a submission dated 6 January 2009 the applicant complained about the
length of the second set of proceedings.
- The
Court notes that these proceedings have been pending since April 2007
and would appear to still be at first instance. The Court further
notes that on 15 July 2010 the Constitutional Court found the
complaint of the length of proceedings manifestly ill-founded, as at
that particular moment the proceedings had been pending for just over
three years, while at least one year has been attributable to the
expert who failed to submit his full expert report. The expert having
been duly fined and another expert appointed, the proceedings
continued. As the proceedings appear to be still pending at first
instance, even assuming that they would merit an examination under
Article 6 § 1 of the Convention, the Court reiterates that the
constitutional remedy continues to be considered in principle
effective and has to be exhausted in respect of complaints introduced
after 7 August 2008 (see Vinčić v. Serbia, paragraph
23 above). There appears to be nothing to prevent the applicant from
reapplying to the Constitutional Court with a fresh appeal,
requesting reconsideration of her complaints in the light of the new
circumstances, i.e. that two years after the decision of the
Constitutional Court and almost five years after the introduction of
the suit, the proceedings are still pending at first instance.
- Therefore,
this complaint must be rejected for non-exhaustion of domestic
remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
C. The remaining complaints
- Finally,
in respect of the applicant’s complaints regarding the
violation of her rights from Article 8 and Article 1 of Protocol No.
1 in both sets of proceedings, the Court finds that the respective
proceedings are still pending, rendering these complaints premature.
- Consequently,
also these complaints must be rejected for non-exhaustion of domestic
remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Françoise Tulkens
Registrar President
