SECOND SECTION
CASE OF
BRANY AND JUGOKOKA v. SERBIA
(Application no.
60336/08)
JUDGMENT
STRASBOURG
5 November 2013
This judgment is final but it may be subject to
editorial revision.
In the case of Brany and Jugokoka v. Serbia,
The European Court of Human
Rights (Second Section), sitting as a Committee composed of:
Paulo Pinto de Albuquerque,
President,
Dragoljub Popović,
Helen Keller, judges,
and Seçkin Erel, Acting Deputy
Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
60336/08) 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 Brany D.O.O. and Jugokoka D.O.O. (“the applicants”), on 5
December 2008. Both applicants are limited liability companies, with their
seats in Belgrade.
The applicants were represented by Mr A.
Bosijoković, a lawyer practising in Belgrade. The Serbian Government (“the
Government”) were represented by their Agent, Mr S. Carić.
On 19 October 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case as
submitted by the parties may be summarized as follows.
A. Civil proceedings
On 18 November 1994 the applicants initiated
civil proceedings before the Belgrade Commercial Court against DD “Yuko
Farma”, a socially-owned company from Žitište (hereinafter: “the debtor”) seeking
damages arising from the debtor’s failure to fulfil conditions of contract on
breed of chickens.
On 3 June 1998 the Belgrade Commercial Court accepted
the applicants’ claim and ordered the debtor to pay the applicants 813,120 Serbian
dinars (RSD) in respect of damage sustained, plus statutory interest and RSD
15,514.25 for legal costs.
On 5 October 1998 the Belgrade High Commercial
Court quashed the judgment of 3 June 1998 and returned the case to the
first-instance court for fresh consideration.
On 13 May 2005 the Belgrade Commercial Court
dismissed the applicants’ civil suit.
On 20 October 2005 the Belgrade High Commercial
Court quashed the decision of 13 May 2005 and returned the case to the
first-instance court.
On 1 November 2006 the Belgrade Commercial Court
stayed the proceedings due to the opening of insolvency proceedings against the
debtor. On 8 November 2007 the proceedings resumed.
On 27 November 2007 the Belgrade Commercial
Court declared that it lacked jurisdiction to deal with the case and
transferred it to the Zrenjanin Commercial Court.
On 8 May 2008 the Zrenjanin Commercial Court
adopted a judgment by virtue of which the debtor was ordered to pay the
applicants RSD 813,120 (approximately 10,000 euros) for damages, plus statutory
interest and RSD 586,912.40 (approximately 7,200 euros) for their legal costs.
The judgement became final on 5 June 2008.
B. Insolvency and enforcement proceedings
On 6 September 2006 the insolvency proceedings were
opened against the debtor.
On 10 June 2011 the applicant lodged an
application for the enforcement of the judgement of 8 May 2008 in respect of
the costs awarded.
On 13 June 2011 the Zrenjanin Commercial Court
allowed the application and issued an enforcement order.
In 16 June 2011 the applicant received the
payment in respect of the legal costs.
In the course of insolvency proceedings the
applicants received 0,44% of the sums awarded in respect of pecuniary damages
by the final judgement of 8 May 2008.
C. Civil proceedings against the State
On 27 August 2008 the applicants filed a civil
suit against the State under Article 172 of the Obligations Act seeking damages
because of the length of the civil proceedings described above.
On 25 September 2009 the Second Municipal Court
in Belgrade rejected their claim.
On 9 February 2012 the Belgrade Appellate Court
upheld this judgment.
On 23 April 2012 the applicants filed an appeal
on points of law before the Supreme Court of Cassation.
The case is pending before the Supreme Court of
Cassation.
D. The status of the debtor
. Before
the insolvency proceedings the debtor company was predominantly socially-owned.
It has remained registered as predominantly socially-owned in the relevant
public registries throughout the insolvency proceedings.
. On 24 April
2012 the Niš Commercial
Court terminated the insolvency proceedings against the company. This decision
became final on 29 May 2012. On 25 July 2012 the debtor was erased from the
Companies’ Register.
II. RELEVANT DOMESTIC LAW
The relevant domestic law is set out in the
Court’s judgments of EVT Company v. Serbia (no. 3102/05, §§ 26
and 27, 21 June 2007); Marčić and Others v. Serbia (no.
17556/05, § 29, 30 October 2007); R. Kačapor and Others v. Serbia
(nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January
2008, §§ 57-82); Vlahović v. Serbia (no. 42619/04, §§37-47, 16
December 2008); Crnišanin and Others v. Serbia (nos. 35835/05, 43548/05, 43569/05 and 36986/06, 13 January 2009, §§
100-104); Adamović v. Serbia, (no. 41703/06, §§ 17-22, 2 October
2012) and Marinković v. Serbia ((dec.) no. 5353/11, 29 January 2013, §§ 26-29 and §§ 31-44). Relevant
provisions concerning the Obligations Act are set out in the V.A.M. v.
Serbia (no.39175/05, §§ 71-72, 13 March 2007)
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION ARISING FROM THE NON-ENFORCEMENT OF THE JUDGEMENT OF 8 MAY 2008
The applicants complained about the respondent
State’s failure to enforce final the judgment rendered in
their favour against the debtor and about the lack of an effective remedy in
this connection. They relied on Articles 6 and 13 of the Convention
which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.”
Article 13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
1. The six-month rule
28. The Government
submitted that the applicants should have lodged the application with the Court
within six months of 6 September 2006, which is the date of the opening of the
insolvency proceedings against the debtor.
29. The applicants
disagreed.
Having regard to the fact that the judgement
under consideration in this case was rendered only in 2008 the Government’s
objection is rejected.
2. Exhaustion of domestic remedies
31. The Government
submitted that the applicants had not exhausted all available, effective
domestic remedies. Notably, the Constitutional Court had harmonised its
case-law with that of the Court in the context of the respondent State’s
liability for non-enforcement of final judgments rendered against
socially-owned companies. Since the applicant failed to lodge a constitutional
appeal, the Government argued that the application should therefore be rejected
for non-exhaustion of domestic remedies.
The applicants disagreed.
The Court has already held in cases such as the applicants’ that a
constitutional appeal should indeed be considered to be an effective domestic
remedy within the meaning of Article 35 § 1 of the Convention, but only in
respect of applications against Serbia lodged after 21 June
2012 (see Marinković v. Serbia, cited above, § 59). It sees
no reason to hold otherwise in the present
case, and notes that the applicants had lodged their application with the Court
on 5 December 2008.
It follows that the Government’s objections concerning the exhaustion of
domestic remedies must be dismissed.
3. Conclusion
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court notes that the judgment of 8 May 2008
became final on 5 June 2008 (more than five years ago) and is yet to be
enforced. The Court notes that a delay in the execution of a judgment may be
justified in particular circumstances. However, the delay may not be such as to
impair the essence of the right protected under Article 6 § 1 of the Convention
(see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III).
The Court observes that it has frequently found
violations of Article 6 of the Convention in cases raising issues similar to
those raised in the present case (see R. Kačapor and Others, cited
above, §§ 115-116, and Adamović v. Serbia, cited above, §§ 40-41). Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case. Accordingly, there has been a breach of
Article 6 of the Convention.
The Court does not find it necessary in the
circumstances of this case to examine essentially the same complaint under
Article 13 of the Convention (see mutatis mutandis, Slovyev v. Ukraine, no. 4878/04, § 25, 14
December 2006, and Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants further complained about the
length of civil proceedings described in paragraphs 5-13 above. The Court
observes that the present application was introduced on 5 December 2008, and
that the constitutional appeal is considered to be an effective remedy for the
length of proceedings in respect to all applications introduced as of 7 August
2008 (see Vinčić and Others v. Serbia, nos. 44698/06,
44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07,
3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07,
13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07,
50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009).
Since the applicants failed to use this
particular avenue of redress, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
III. 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.”
A. Damage
The applicants claimed RSD 82,597,315,20 [approximately
723,000 euros (EUR)] in respect of pecuniary damage.
The Government contested the applicants’ claim.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim.
It must, however, be noted that a judgment in which the
Court finds a violation of the Convention or of its Protocols imposes on the
respondent State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction, but also to choose, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the
violation found (see Apostol v. Georgia, no.40765/02, §§ 71-73, ECHR
2006, and Marčić and Others v. Serbia, cited above, §§ 64-65,
and Pralica v. Bosnia and Herzegovina, no. 38945/05, § 19, 27
January 2009).
. Having
regard to its finding in the instant case, and without prejudice to any other
measures which may be deemed necessary, the Court considers that the respondent
State must secure the enforcement of the final domestic judgment of 8 May 2008
by way of paying the applicant, from their own funds, the sums awarded in the
said final judgment, less any amounts which may have already been paid in
respect of the said judgment.
B. Costs and expenses
The applicants also claimed RSD 103,000 (approximately
EUR 900) for the costs and expenses incurred before the domestic courts. The
amount claimed relates to court fees that the applicants had to pay in the
civil suit lodged by the applicants under Article 172 of the Obligations Act
(see paragraphs 19-22 above).
The Government failed to provide any comments in
this respect.
In accordance with the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum (see, for example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
Since costs and expenses claimed by the
applicants are not related to the violation found, the Court rejects this claim.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the
non-enforcement of the final court judgment rendered in the applicants’ favour admissible
and the remainder of the application inadmissible;
2. Holds that
there has been a violation of Article 6 of the Convention;
3. Holds that
there is no need to examine the complaint under Article 13 of the Convention;
4. Holds
(a) that the respondent State shall, from its own
funds and within three months, pay the applicants, the sums awarded in the
final judgment of 8 May 2008, less any amounts which may have already been paid
on the basis of the said judgment;
(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;
5. Dismisses the
remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 5 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Seçkin Erel Paulo Pinto de Albuquerque
Acting Deputy Registrar President
