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SECOND
SECTION
CASE OF POPOVIĆ v. SERBIA
(Application
no. 38350/04)
JUDGMENT
STRASBOURG
20
November 2007
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 Popović v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mr D. Popović, judges,
and Mrs F. Elens-Passos, Deputy
Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38350/04) 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 citizen of Bosnia and
Herzegovina, Mr Milovan Popović (“the applicant”),
on 7 October 2004.
- The
applicant was represented by Mrs A. Pejović, a lawyer practising
in Beograd. The Serbian Government (“the
Government”) were represented by their Agent, Mr. S. Carić.
The Government of Bosnia and Herzegovina did not make use of their
right to intervene (Article 36 § 1 of the Convention).
- On
30 August 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 1939 and lives in Bijela Brda.
- On
9 April 1984 the applicant brought a civil action in the Beograd
Third Municipal Court against a certain N.D., seeking repayment of a
loan.
- Having
heard the applicant in person at a hearing on 20 June 2002, on 5
November 2002 the court gave a judgment accepting the applicant's
claim. On 26 November 2003 the Beograd District Court quashed that
judgment for factual shortcomings and remitted the case. In its
decision, the District Court instructed the first-instance court to
hear and confront the parties, as well as to hear the other witnesses
proposed by the applicant with a view to establishing, inter alia,
whether the loan had been made to N.D. or to his father, whether a
part of it had in the meantime been repaid and whether the claim was
time-barred.
- In
the resumed proceedings, the court held a hearing on 16 November
2004, which the applicant did not attend although duly summoned. On
that occasion, his lawyer informed the court that the applicant was
in poor health and needed surgery. Therefore, the applicant would not
be able to attend court hearings, but maintained all his claims, as
previously stated in his oral and written submissions to the court.
- On
1 April 2005 the applicant submitted a medical certificate, stating
that he suffered from paranoid psychosis with signs of hypochondria,
and that he was unable to attend court hearings.
- The
court appears to have held further hearings on 17 June and 7 October
2005, both attended by the applicant's lawyer. It also obtained an
expert opinion on 27 May 2005.
- The
court subsequently ordered the applicant's lawyer to inform it of the
exact date and place where the applicant would be medically treated.
It further contacted the medical institution which had issued the
certificate of 1 April 2005, requesting its opinion on whether the
applicant's health allowed him to be a party to the proceedings. It
would appear that none of the court orders has ever been complied
with.
- At
the hearing held on 26 September 2006 the applicant's lawyer
specified the claim, whereas the respondent submitted that, if the
applicant was ill, the court could not continue the proceedings.
- The
proceedings are still pending before the first-instance court.
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Judges Act and the
Obligations Act
- The
relevant provisions of this legislation are set out in the V.A.M. v.
Serbia judgment (no. 39177/05, §§ 70-72, 13 March
2007).
B. Civil Procedure Act (Zakon o parničnom
postupku; published in OG RS 125/04)
- The
relevant provisions of this Act (hereafter referred to as the “CPA”)
provide as follows:
Section 77 (1)
“During the course of the proceedings, the court
shall ex officio verify whether the person appearing as a
party may be party to the proceedings and whether he or she has the
capacity to act...”
Section 78 (1)
“Should the court establish that the person
appearing as party cannot be party to the proceedings, and that this
obstacle cannot be eliminated, it will invite the plaintiff to
undertake the necessary amendments to the claim...”
Section 262
“1. Relevant facts may also be established by
hearing the parties.
2. The court shall decide to hear the parties when
there is no other evidence or when, despite the presentation of other
evidence, the court deems it necessary with a view to establishing
relevant facts.”
Section 263
“... 2. The court may decide to hear only one of
the parties, if the other party refuses to give a statement or does
not appear [at the hearing] despite the court summons.
3. If a party dies in the course of the proceedings, or
his or her repeated examination becomes impossible for some other
reason, the court will read the minutes containing that party's
statement.”
Section 264
“The party may be heard through another court only
if he or she cannot come to the court in person due to obstacles
which cannot be eliminated or at extremely high costs.”
Section 267
“1. The court may not use any compelling measures
in respect of the party which did not appear at the scheduled court
hearing [for the examination of the parties], nor can a party be
forced to give a statement.
2. In light of all the circumstances of the case, the
court shall assess the party's failure to appear or refusal to give a
statement.”
Section 317
“If a hearing is held before a new formation [of
judges], the main hearing must recommence, but the chamber may,
having consulted the parties, decide not to hear witnesses and expert
witnesses or hold an on-site inspection again, but instead read the
minutes of the evidence already taken.”
C. The Court of Serbia and Montenegro and the
succession of the State Union of Serbia and Montenegro
- The
relevant provisions concerning the Court of Serbia and Montenegro and
the succession of the State Union of Serbia and Montenegro are set
out in the Matijašević
v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25,
19 September 2006).
D. Criminal Code 1977 (Krivični zakon Republike
Srbije; published in OG SRS nos. 26/77, 28/77, 43/77, 20/79, 24/84,
39/86, 51/87, 6/89, 42/89, 21/90 and OG RS nos. 16/90, 26/91, 75/91,
9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02,
80/02, 39/03, 67/03 and 85/05)
- Sections
242, 243 and 245 of this Code define “abuse of office”
(zloupotreba sluZbenog poloZaja), “judicial malfeasance”
(kršenje zakona od strane sudije) and “official
malfeasance” (nesavestan rad u sluZbi) as separate
criminal offences.
E. Relevant constitutional provisions
- Article
25 of the Serbian Constitution (Ustav Republike Srbije),
published in the Official Gazette of the Socialist Republic of Serbia
(OG SRS - no. 1/90), provided as follows:
“Everyone shall be entitled to compensation for
any pecuniary and non-pecuniary damages suffered due to the unlawful
or improper conduct of a State official, a State body or a public
authority, in accordance with the law.
Such damages shall be met by the Republic of Serbia or
the public authority [in question].”
- This
Constitution was repealed on 8 November 2006, which is when the “new”
Constitution (published in OG RS no. 98/06) entered into force.
- The
substance of Article 35 § 2 of the new Constitution corresponds,
in its relevant part, to the above-cited text of the previous Article
25.
- Article
170 of the new Constitution provides that a constitutional complaint
may be lodged against the acts of public entities violating human and
minority rights and liberties guaranteed by the Constitution.
- Section
9 of the Constitutional Act on the Implementation of the Constitution
(OG RS 98/06) provides that the election of Constitutional Court
judges shall be finalised before the end of the first National
Assembly.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had not exhausted all
effective domestic remedies. In particular, he had failed
to complain about the delay in question to the president of the
competent court, the president of the directly higher court or to the
Supreme Court's Supervisory Board (see paragraph 13 above). Further,
the applicant had not brought a separate civil action under sections
199 and 200 of the Obligations Act and Article 25 of the Constitution
(see paragraphs 13 and 17 above); nor had he filed a criminal
complaint under sections 242, 243 and 245 of the Criminal Code 1977
(see paragraph 16 above). Finally, he had not made use of the
complaint procedure before the Court of Serbia and Montenegro (see
paragraph 15 above); nor had he lodged a constitutional complaint
under Article 170 of the new Serbian Constitution (see paragraph 20
above).
- The
applicant contested the effectiveness of these remedies.
- As
regards the possibility of lodging a constitutional complaint, it is
observed that the new Serbian Constitution indeed envisaged the
possibility of lodging an individual constitutional complaint against
acts of public entities violating the individual's human rights (see
above paragraph 20). However, the Court notes that the said provision
is of a general nature and requires further implementation –
the election of judges and the establishment of the Constitutional
Court, as well as the adoption of legislation regulating its
structure and rules of procedure. None of these conditions have been
fulfilled to date; the respondent State has not elected judges, nor
has it adopted the necessary legislation. In these circumstances, a
constitutional complaint cannot be considered to have been available
to the applicant or a remedy which needed to be exhausted in the
circumstances of the present case.
- In
respect of the remainder of the remedies put forward by the
Government, the Court has already held that they could not be deemed
effective within the meaning of Article 35 § 1 of the Convention
(see, mutatis mutandis, V.A.M. v. Serbia, cited
above, §§ 85-88 and 119, 13 March 2007, and EVT
Company v. Serbia, no. 3102/05, §§ 39
and 41, 21 June 2007). It sees no reason to depart from those
findings in the present case and concludes, therefore, that the
Government's objections must be rejected.
- 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
1. Arguments of the parties
- The
Government argued that, even though the case was not complex, the
applicant significantly contributed to its length by failing to
appear at numerous hearings. The second-instance court having ordered
that the parties again be heard with a view to determining certain
facts, it had been crucial for the applicant to appear in court in
person. The applicant also amended his claim several times, the last
time at the hearing on 26 September 2006. The Government further
submitted that, since the applicant lives in another country, the
diplomatic service of the court letters required additional time.
Lastly, the Government pointed out that the applicant's illness
additionally aggravated the situation because the issue of his
capacity to act had been put in question.
- The
applicant disagreed with the Government. He submitted that his health
did not allow him to travel to Belgrade, but that his lawyer was
present at every court hearing. The applicant further stressed that
he had given all relevant information concerning the merits of his
claim when he had been heard by the court in 2002, and that he had
had nothing to add to that statement. He also submitted that he had
proposed to the court to read to the record his previous statement
instead of insisting on questioning him again.
2. Period to be taken into account
- The
Court notes that the proceedings started on 9 April 1984 when the
applicant filed his civil action. According to the information
available in the case file, they were still pending on the date of
adoption of the present judgment. Consequently, they have lasted more
than twenty three years and seven months before one court instance.
- However,
the period falling within the Court's jurisdiction began on 3 March
2004, when the Convention entered into force in respect of Serbia,
and has not yet ended. It has thus lasted over three years and eight
months for one level of jurisdiction.
- Nevertheless,
in order to determine the reasonableness of the length of time in
question, regard may also be had to the state of the case on 3 March
2004 (see, among other authorities, Styranowski v. Poland,
judgment of 30 October 1998, Reports of Judgments and
Decisions 1998 VIII, p. 3376, § 46). By that
date, the case had already been pending almost twenty years.
3. The Court's assessment
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- Turning
to the present case, the Court cannot accept the Government's
allegation that the protracted character of the proceedings had been
mainly imputable to the applicant. Under the domestic law, hearing
the parties is only to be undertaken if there is no other available
evidence or if it does not suffice to establish the relevant facts
(section 262 of the CPA). Once it was established that the applicant
was unable to attend court due to his poor health, it was not the
court's task to enquire about his capacity to act. However, since the
applicant's lawyer was present at every hearing, there were no
procedural obstacles to continuing the case and taking other
evidence, as indicated in the District Court's decision. Moreover,
the court could have read to the record the applicant's statement
given in 2002 (section 263 of the CPA), or invited him to submit any
other information in writing, if this had been vital for deciding the
merits of the case. Finally, it was for the court to assess the
applicant's failure to give a statement in the proceedings (section
267 of the CPA). Consequently, the Court concludes that the
applicant's inability to be heard should not have caused the
proceedings to last, following their remittal, over four years at one
level of jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, and in
particular the fact that the proceedings are still pending at
first-instance with no prospects of a speedy conclusion, the Court
considers that the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
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
applicant claimed 3,000 euros (EUR) in respect of pecuniary damage
and EUR 7,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicant EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed costs and expenses incurred before the Court.
However, he failed to submit itemised particulars of his claim or any
relevant supporting documents, although he was invited to do so.
- The
Government contested this claim.
- The Court observes that the applicant failed to comply
with the requirements set out in Rule 60 § 2 of the
Rules of Court. In these circumstances, it makes no award under this
head (Rule 60 § 3).
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 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 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, 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 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos
F. Tulkens
Deputy
Registrar President
