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SECOND
SECTION
CASE OF SIMIĆ v. SERBIA
(Application
no. 29908/05)
JUDGMENT
STRASBOURG
24
November 2009
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 Simić v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Vladimiro Zagrebelsky,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29908/05) against the State
Union of Serbia and Montenegro, lodged with the Court, under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), by, at that
time, a citizen of the State Union of Serbia and Montenegro,
Mr Zivan Simić (“the applicant”), on 1 August 2005.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- The
applicant was represented by Mr R. Spasojević, a lawyer
practising in Valjevo. The Government of the State Union of Serbia
and Montenegro and, subsequently, the Government of Serbia (“the
Government”) were represented by their Agent, Mr S. Carić.
- On
15 March 2007 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Valjevo.
- On
24 July 1998 and 16 November 1998 the applicant filed two separate
claims against his employer with the Municipal Court in Valjevo (“the
Municipal Court”), seeking revocation of his suspension from
work as well as reinstatement and salary arrears, respectively.
- On
9 April 1999 the two sets of proceedings were joined.
- Following
a remittal, on 14 March 2006 the Municipal Court ruled against the
applicant.
- On
29 March 2007 and 3 April 2008 the District Court and the Supreme
Court, respectively, upheld the decision of 14 March 2006.
II. RELEVANT DOMESTIC LAW
A. Labour Act 2001 (Zakon o radu; published in the
Official Gazette of the Republic of Serbia - OG RS - nos. 70/01 and
73/01)
- Article
122 § 3 provided that all employment-related disputes were to be
resolved by the courts within a period of 6 months from the date of
institution of the proceedings.
B. Labour Act 2005 (Zakon o radu; published in OG RS
nos. 24/05 and 61/05)
- This
Act entered into force on 23 March 2005 and thereby repealed the
Labour Act 2001.
- The
text of Article 195 § 3 of the Labour Act 2005 corresponds to
Article 122 § 3 of the Labour Act 2001.
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...”
- The
Government contested that argument.
- The
period to be taken into consideration only began on 3 March 2004,
when the Convention entered into force in respect of Serbia. However,
in assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at the time.
By that date the proceedings had already been pending well over five
years.
- The
period in question ended on 3 April 2008. It thus lasted four years
and one month for three levels of jurisdiction.
A. Admissibility
- The
Government raised various objections to the admissibility of these
matters. However, the Court has rejected similar objections in many
previous cases (see, for example, Cvetković
v. Serbia, no. 17271/04, §§ 38
and 42, 10 June 2008; Tomić v. Serbia, no. 25959/06,
§§ 81 and 82, 26 June 2007; V.A.M. v. Serbia,
no. 39177/05, §§ 85 and 86, 13 March 2007). It
finds no particular circumstances in the instant case which would
require a departure from this jurisprudence. It therefore declares
the application admissible.
B. Merits
- 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). The Court reiterates that special diligence is
necessary in employment disputes (Ruotolo v. Italy, judgment
of 27 February 1992, Series A no. 230-D, p. 39, § 17).
- The
Court also notes that this requirement is reinforced additionally in
respect of States where the domestic law provides that such cases
must be resolved with particular urgency (see paragraphs 10-12 above,
as well as, among other authorities, Stevanović v. Serbia,
no. 26642/05, §§ 53 and 55, 9 October 2007).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Stanković v. Serbia, no.
29907/05, 16 December 2008).
- 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.
Having regard to its case-law on the subject, 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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage as a result of the procedural delay at issue.
Accordingly, taking into account the circumstances of the case and
making its assessment on an equitable basis, the Court awards the
applicant 600 euros (EUR) under this head.
B. Costs and expenses
- The
applicant also claimed an unspecified amount
for the costs and expenses incurred domestically, as well as those
incurred in the proceedings before the Court.
- The
Government contested this claim.
- According
to 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 were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court rejects, as
unsubstantiated, the applicant's claims in their entirety.
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 600 (six
hundred euros) in respect of the non-pecuniary damage suffered, which
sum is to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement, 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 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. TULKENS
Registrar President
