Last Updated on November 2, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 57715/13
Radomir ŠIKMANOVIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 13 March 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 21 August 2013,
Having regard to the declaration submitted by the respondent Government on 15 September 2017 requesting the Court to strike the application out of the list of cases and the applicant’s heirs’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Radomir Šikmanović, was a Montenegrin national, who was born in 1958 and lived in Kotor. The applicant died in the course of the proceedings before the Court.
According to the Court’s case-law when the direct victim dies after the application was lodged with the Court, the applicant’s heirs may pursue the application provided that they have legitimate interest in maintaining the request on behalf of the deceased (see, mutatis mutandis,Ergezen v. Turkey, no. 73359/10, §§ 28-30, 8 April 2014). In the present case the applicant’s widow and three children, legal heirs of the applicant, showed such interest which has given them the requisite standing under Article 34 of the Convention to pursue this application.
The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the enforcement of the final judgment rendered in his favour on 24 February 2006.
The application had been communicated to the Government on 9 December 2015.
THE LAW
After the failure of attempts to reach a friendly settlement, by a letter of 15 September 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“ I declare that the Government of Montenegro hereby wish to express acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved and are ready to accept that there had been a violation of the applicant’s right under Articles 6 § 1 and 13 of the Convention.
Consequently, the Government are ready to pay to the heirs of late Mr Radomir Šikmanović – his wife Vesna Šikmanović and children Ivan Šikmanović, Luka Šikmanović and Slađana Kljajević, jointly, the amount of EUR 700 (seven hundred euros) which it considers to be reasonable in the light of the Court’s case‑law, less any amounts which may have already been paid in that regard at the domestic level in order to cover any non-pecuniary damage, as well as [the] amount of EUR 100 (one hundred euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicant in respect of the application registered under no. 57715/13 before the European Court of Human Rights.
This sum shall be payable within three months from the date of delivery of the decision of the Court to strike the case out of its list of cases, as referred to in Article 37 § 1 (c) of the Convention.
These payments will constitute the final resolution of the actions.
The Government wish to express regret for the occurrence of the actions which have led to the bringing of the present application.”
By a letter of 18 October 2017, the applicant’s heirs indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the sum proposed in the Government’s declaration was unacceptably low.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007; and WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).
The Court has established in a number of cases, including those brought against Montenegro, its practice concerning complaints about the non‑enforcement or the delayed enforcement of final domestic judgments (see, for example, Vukelić v. Montenegro, no. 58258/09, §§ 98-102, 4 June 2013, and Jovović v. Montenegro, no. 46689/12, §§ 40-44, 18 July 2017).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Further, the Court interprets the Government’s declaration as meaning that in the event of failure to settle within the three-month period indicated in this declaration, simple interest shall be payable on the amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 5 April 2018.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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