THIRD SECTION
\nCASE OF LJAJI\u0106 v. SERBIA
\n(Application no. 41820\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n23 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Ljaji\u0107 v. Serbia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Pere Pastor Vilanova, President, andFato\u015fArac\u0131, Deputy Section Registrar,<\/p>\n Having deliberated in private on 2 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 41820\/16) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Serbian national, Mr Re\u0161adLjaji\u0107 (\u201cthe applicant\u201d), on 5 July 2016.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr S. Ljaji\u0107 from Belgrade. The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms N. Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 30 August 2017 the applicant\u2019s complaint, under Article 6 \u00a7 1 of the Convention, concerning the non-enforcement of final domestic court decision rendered in favour of the applicant was communicated to the Government. Other two complaints, under Article 13 and Article 1 of Protocol No. 1 were rejected in the single judge procedure on non-exhaustion grounds.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1964 and lives in \u0160titare.<\/p>\n A.\u00a0\u00a0Civil proceedings and enforcement proceedings<\/strong><\/p>\n 5.\u00a0\u00a0On 30 May 2000 the Belgrade Third Municipal Court ordered a socially-owned company KMG Trudbenik (hereinafter \u201cthe debtor company\u201d), based in Belgrade, to pay to the applicant a specified amount on account of salary arrears, plus the costs of the civil proceedings (judgment no. P1\u00a0863\/99). This judgment became enforceable on 19 June 2000.<\/p>\n 6.\u00a0\u00a0On 13 March 2002, upon the applicant\u2019s request to that effect, the Fourth Belgrade Municipal Court ordered the enforcement of the said judgment and further ordered the debtor company to pay the applicant\u2019s enforcement costs (enforcement order no. I-VIII 101\/2002).<\/p>\n 7.\u00a0\u00a0On 7 October 2003 the enforcement proceedings were suspended due to the institution of compulsory settlement proceedings before the Belgrade Commercial Court (\u201cthe Commercial Court\u201d).<\/p>\n B.\u00a0\u00a0Insolvency proceedings<\/strong><\/p>\n 8.\u00a0\u00a0On 9 December 2011 the Commercial Court opened insolvency proceedings in respect of the debtor company.<\/p>\n 9.\u00a0\u00a0On 6 March 2012 the applicant submitted his request for enforcement of the 30 May 2000 judgment (\u201cenforcement request\u201d) to the insolvency manager. The insolvency manager neither rejected the applicant\u2019s claim nor forwarded it to the Commercial Court.<\/p>\n 10.\u00a0\u00a0On 24 February 2014 the applicant thus submitted his enforcement request with the Commercial Court, and on 1 October 2014 he supplemented it.<\/p>\n 11.\u00a0\u00a0On 6 August and 27 October 2014 the applicant complained about the inactivity of the acting judge in the insolvency proceedings.<\/p>\n 12.\u00a0\u00a0On 13 October 2014 the Commercial Court rejected the applicant\u2019s enforcement request as having been lodged out of time.<\/p>\n 13.\u00a0\u00a0On 28 January 2015 the Commercial Appellate Court rejected the applicant\u2019s appeal, and upheld the Commercial Court\u2019s decision of 13\u00a0October 2014.<\/p>\n 14.\u00a0\u00a0On 24 March 2015 the applicant lodged a constitutional appeal, complaining of the decision of 28 January 2015.<\/p>\n 15.\u00a0\u00a0However, on 19 May 2016 the Constitutional Court rejected the applicant\u2019s appeal as unfounded.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 16.\u00a0\u00a0The relevant domestic law concerning the status of socially-owned companies, enforcement and insolvency proceedings is outlined in the cases of R. Ka\u010dapor and Others v. Serbia (nos. 2269\/06 et al., \u00a7\u00a7 57-64 and \u00a7\u00a7\u00a071-76, 15 January 2008), and Jovi\u010di\u0107 and Others v. Serbia ((dec.), no.\u00a037270\/11, \u00a7\u00a7 88-93, 15 October 2013).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained of the respondent State\u2019s failure to enforce the final court judgment rendered in his favour.<\/p>\n The case falls to be examined under Article\u00a06 of the Convention, which read as follows:<\/p>\n Article 6 \u00a7 1<\/p>\n \u201cIn 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 18.\u00a0\u00a0The Government argued that, as the applicant had failed to properly register his claim in the above-mentioned insolvency proceedings, his application to the Court was inadmissible on grounds of non-exhaustion of domestic remedies.<\/p>\n 19.\u00a0\u00a0The applicant maintained that he had complied with the exhaustion requirement.<\/p>\n 20.\u00a0\u00a0The Court has already considered similar arguments and rejected them (see, mutatis mutandis, Loli\u0107 v. Serbia, no. 44095\/06, \u00a7\u00a026, 22\u00a0October 2013, and, especially, Stokovi\u0107 and Others v. Serbia (dec.), no.\u00a075879\/17 and 17 others, \u00a7\u00a7 28-30, 8 March 2016). It sees no reason to depart from that approach in the present case. Therefore, the Government\u2019s objection must be rejected.<\/p>\n 21.\u00a0\u00a0The Court further notes that the applicant\u2019s complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 22.\u00a0\u00a0The Court notes that the domestic judgment at issue in the present case has remained unenforced to date.<\/p>\n 23.\u00a0\u00a0It further observes that it has frequently found violations of Article\u00a06 of the Convention and\/or Article 1 of Protocol No. 1 in cases raising issues similar to those raised in the present case (see R. Ka\u010dapor and Others, cited above, \u00a7\u00a7 115-116 and \u00a7 120, Crni\u0161anin and Others v. Serbia, nos.\u00a035835\/05 et seq., \u00a7\u00a7 123-124 and \u00a7\u00a7\u00a0133-134, 13 January 2009).<\/p>\n 24.\u00a0\u00a0Having 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. There has, accordingly, been violation of Article 6 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damages, costs and expenses<\/strong><\/p>\n 26.\u00a0\u00a0The applicant requested that the respondent State be ordered to pay, from its own funds: (i) the sums awarded in the final court judgment rendered in his favour on 30 May 2000; (ii) USD 2,600 for non-pecuniary damages; and (iii) USD 2,000 in respect of legal costs incurred in the proceedings before the domestic courts and the Court.<\/p>\n 27.\u00a0\u00a0The Government contested these claims.<\/p>\n 28.\u00a0\u00a0Having regard to the violations found in the present case and its own case-law (seeR. Ka\u010dapor and Others, cited above, \u00a7\u00a7 123-126, and Crni\u0161anin and Others, cited above, \u00a7 139) the Court considers that the applicant\u2019s claim for pecuniary damage concerning the payment of the outstanding judgment debt must be accepted. The Government shall therefore pay the applicant the sums awarded in the final domestic judgment adopted on 30 May 2000, less any amounts which may have already been paid in respect of the said judgment.<\/p>\n 29.\u00a0\u00a0As regards non-pecuniary damage, the Court considers that the applicant sustained some non-pecuniary loss arising from the breaches of the Convention found in this case. Having regard to its case-law (Sto\u0161i\u0107v.\u00a0Serbia, no. 64931\/10, \u00a7\u00a7 66-68, 1 October 2013), the Court awards EUR\u00a02,000 to the applicant, less any amounts which may have already been paid in that regard at the domestic level. This sum is to cover non-pecuniary damage, costs and expenses.<\/p>\n B.\u00a0\u00a0Default interest<\/strong><\/p>\n 30.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, from its own funds and within three months, the sums awarded in the court judgment rendered in his favour on 30 May 2000, less any amounts which may have already been paid in this regard;<\/p>\n (b)\u00a0\u00a0that the respondent State is to pay the applicant, within the same period, EUR 2,000 in respect of non\u2011pecuniary damage and costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after the deduction of any amounts which may have already been paid on this basis;<\/p>\n (c)\u00a0\u00a0that 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;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 23 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015fArac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Pere Pastor Vilanova
\nBranko Lubarda,
\nGeorgios A. Serghides, judges,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n