SECOND SECTION
CASE OF
KLIKOVAC AND OTHERS v. SERBIA
(Application no.
24291/08)
JUDGMENT
STRASBOURG
5 March 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Klikovac and Others 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 Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 12 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24291/08) 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 three Serbian nationals, Mr Branko Klikovac, Mr Milovan
Bačanac and Mr Radovan Vasić (“the applicants”), on 3 May 2008.
All the applicants were initially represented by Mr
S. Krstić, a lawyer practising in Kraljevo. On 27 September 2011 he
informed the Court that he was no longer representing Mr Branko Klikovac and Mr
Milovan Bačanac. The Serbian Government (“the Government”) were
represented by their Agent, Mr S. Carić.
On 29 June 2010 the President of the Second
Section decided to give notice of the applications to the Government. It was
also decided to rule on the admissibility and merits of the applications at the
same time (Article 29 § 1).
The Government objected to the examination of the
application by a Committee. After having considered the Government’s objection,
the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1942, 1953 and 1949 respectively
and live in Kraljevo.
On 10 November 2004 the Kraljevo District Court (“the
District Court”) ordered “MAGNOHROM d.o.o.” (“the debtor”), a company from
Kraljevo, to pay the applicants in solidum 1,504,924 Serbian dinars (“RSD”)
together with statutory interest and legal costs. This judgment became final on 6 July 2006.
A. The enforcement proceedings
On 2 February 2007 the applicants filed a request
for the enforcement of the above judgment
proposing that it be carried out through the auctioning of the debtor’s
specified immovable assets.
On 6 February 2007 the Kraljevo Municipal Court
(“the Municipal Court”) issued a writ of execution (rešenje o izvršenju).
The debtor appealed against that decision arguing that it was going through the
process of restructuring as well as that the value of the impugned immovable
assets exceeded the value of the applicants’ claims. On 9 March 2007 the
District Court dismissed the appeal.
On an unspecified date 60 other enforcement
claims submitted against the same debtor were joined to the applicants’ case.
After several hearings and few unsuccessful
public auctions, on 30 April 2010 the impugned assets were sold to a
company from Bačka Palanka for RSD 151,663.077.
The final decision on division of the proceeds
and the order of settlement of creditors was issued by the Municipal Court on 5
July 2011. The court ordered the partial settlement of all creditors in
proportion to their claims and the amount obtained through the sale.
Shortly thereafter the applicants’ claims were
partially settled.
B. The status of the debtor
The debtor was privatised on 21 July 2006.
The sales contract was annulled on 28 December
2007 due to a buyer’s failure to fulfil the contractual obligations.
As of January 2008, the debtor still consisted
of predominantly socially/State-owned capital.
On 28 May 2010 the Privatisation Agency ordered
the restructuring of the debtor, which is still ongoing. Nevertheless, the
enforcement proceedings under consideration in the present case have never been
suspended or terminated on these grounds.
II. RELEVANT DOMESTIC LAW
The relevant domestic law concerning the status
of the socially-owned companies and the relevant provisions concerning the
enforcement proceedings were outlined in the case of R. Kačapor and
Others v. Serbia, nos. 2269/06 et al., 15 January 2008, §§ 57-64 and
§§ 71-76. Furthermore, the relevant provisions concerning the privatisation of
socially-owned companies were outlined in the case of Crnišanin and Others
v. Serbia, nos. 35835/05 et al., §§ 100-104, 13 January 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The applicants complained about the respondent
State’s failure to enforce the final judgment of
10 November 2004. They relied on Article 6 of the Convention and Article 1
of Protocol No. 1 to the Convention.
Article 6, in so far as relevant, provides:
“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 1 of Protocol No. 1 to the Convention 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.”
A. Admissibility
The Court notes that the application 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 domestic judgment in the applicants’ favour was given on 10 November
2004 and it became final on 6 July 2006. The applicants sought enforcement on 2
February 2007. However, it has not been fully enforced until the present day.
The Government did not advance any argument to justify this.
The Court has already found a breach of Article 6
of the Convention and Article 1 of Protocol No. 1 to the Convention in similar
circumstances (see R. Kačapor and Others, cited above, §§ 115-116; Crnišanin
and Others, cited above, § 123; and Rašković and Milunović v.
Serbia, nos. 1789/07 and 28058/07, § 79, 31 May 2011). It finds no reason to depart from that
jurisprudence in the present.
Accordinlgy, there
has been a breach of Article 6 of the Convention and Article 1 of Protocol No.
1 to the Convention.
II. 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 sought the payment of the
outstanding judgment debt in respect of pecuniary damage and EUR 100,000 each
in respect of non-pecuniary damage. The Government considered the claims
excessive and unjustified.
Having regard to the violations found in the
present case and its own jurisprudence (see R. Kačapor and Others, cited
above, §§ 123-126, and Crnišanin and Others, cited above, § 139), the
Court considers that the applicants’ claim for pecuniary damage must be
accepted. The Government shall, therefore, pay in respect of each applicant the
outstanding debt from the final judgment of 10 November 2004.
As regards non-pecuniary damage, the Court
considers that the applicants sustained some non-pecuniary loss arising from
the breaches of the Convention found in this case. The particular amount
claimed, however, is excessive. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards each applicant EUR 4,700
under this head.
B. Costs and expenses
The applicants also claimed RSD 300,000 for the
costs and expenses incurred before the domestic courts and approximately EUR 2,480
for those incurred before the Court. The Government considered the amounts
excessive.
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). Regard being
had to the information in its possession and the above criteria, the Court
considers it reasonable to award the applicants EUR 450 under this head.
As regards the costs and expenses incurred
domestically, the Court notes that they are an integral part of the applicants’
pecuniary claims which have already been dealt with above.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 of the Convention and of Article 1 of Protocol No. 1 to the
Convention;
3. Holds
(a) that the respondent State shall, from its own funds
and within three months, pay the outstanding debt owed to the applicants under
the final judgment of 10 November 2004;
(b) that the respondent State is to pay the applicants, within
the same period, the following amounts, to be converted into
the currency of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 4,700 (four thousand seven hundred euros) each, plus
any tax that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 450 (four hundred fifty euros) together, plus any tax
that may be chargeable to the applicant, in respect of cots and expenses;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 5 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Paulo Pinto de
Albuquerque
Deputy Registrar President
