THIRD SECTION
\nCASE OF MIJATOVI\u0106 AND OTHERS v. SERBIA
\n(Applications nos. 50117\/13 and 6 others \u2013 see appended list)<\/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 Mijatovi\u0107 and Others 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, 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 seven applications (nos.\u00a050117\/13, 50776\/13, 60349\/13, 62038\/13, 63099\/13, 64201\/13 and 68381\/13) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d).The applicants were all Serbian nationals and their further personal and other relevant details are set out in the appendix to this judgment.<\/p>\n 2.\u00a0\u00a0The Serbian Government (\u201cthe Government\u201d) were initially represented by their former Agent, Ms V. Rodi\u0107, who was subsequently substituted by their current Agent, Ms. N. Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 1 September 2015 and 2 November 2015 the complaints concerning the non-enforcement of the domestic decisions in question were communicated to the Government and the remainder of the applications were declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n 5.\u00a0\u00a0The applicants complained about the failure by the national authorities to enforce final court decisions rendered in their favour.<\/p>\n 6.\u00a0\u00a0All applicants obtained decisions by the Constitutional Court, which established a violation of their right to a hearing within reasonable time and awarded them certain sums in respect of the non-pecuniary damage suffered (see the appendix to this judgment).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n 7.\u00a0\u00a0The Court considers that, in accordance with Rule 42 \u00a7 1 of the Rules of Court, the applicants\u2019 complains should be joined, given their similar factual and legal background.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLES6 \u00a7 1AND 13 OF THE CONVENTION<\/p>\n 8.\u00a0\u00a0The applicants complained under Article 6 \u00a7 1 and Article 13 of the Convention about the non-enforcement of the final court decisions rendered in their favour. In so far as relevant, these Articles 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 … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n Article 13<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 9.\u00a0\u00a0The Government submitted that the applicants could not claim to be victims of the alleged violations. The Court considers that this objection is closely linked to the substance of the applicants\u2019 complaints and must therefore be joined to the merits.<\/p>\n 10.\u00a0\u00a0As regards the applicants in applications nos. 60349\/13 and 63099\/13, the Government further argued that they did not suffer any significant disadvantage since their respective enforcement requests were of a relatively small value.\u00a0The Court notes that in both of these applications, the Constitutional Court had already found a violation of the applicants\u2019 right to a trial within a reasonable time. In addition, the Government did not provide any evidence in support of their arguments. The Court thereforeis unable to conclude that the proceedings in questionhad no real significance for the applicants and rejects the Government\u2019s objection in that respect.<\/p>\n 11.\u00a0\u00a0The Court notes that the applicants\u2019 complaintsareotherwise not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that there are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 12.\u00a0\u00a0The Government submitted that as all the applicants had obtained favorabledecisions from the Constitutional Court they had thus lost their victim status. In the Government\u2019s opinion, the finding ofthe violations in questionand the awardingof compensation for the non-pecuniary damage suffered constituted sufficient redress, particularly in view of the \u201cinactivity\u201d of some of the applicants.<\/p>\n 13.\u00a0\u00a0The applicants disagreed.<\/p>\n 14.\u00a0\u00a0The Court recalls that an applicant\u2019s status as a \u201cvictim\u201d within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Vidakovi\u0107 v. Serbia (dec.) no. 16231\/07, \u00a7 24 May 2011; Cocchiarella v. Italy [GC], no.\u00a064886\/01, \u00a7 71, ECHR 2006\u2011V; and Cataldo v. Italy (dec.), no.\u00a045656\/99, 3\u00a0June 2004).<\/p>\n 15.\u00a0\u00a0In this respect, the Court notes that the Constitutional Court found that the applicants\u2019 right to a hearing within a reasonable time had been violated (see paragraph 6 above), thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court\u2019s case law.<\/p>\n 16.\u00a0\u00a0The applicants\u2019 victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjakov\u00e1 v. Slovakia (dec.), no. 67299\/01, 19 October 2004).<\/p>\n 17.\u00a0\u00a0In this connection, the Court recalls that in non-enforcement cases one of the characteristics of sufficient redress which may remove a litigant\u2019s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which \u2013 while being lower than those awarded by the Court \u2013 are not unreasonable (see Cocchiarella v. Italy [GC], cited above, \u00a7\u00a7 96, 97).<\/p>\n 18.\u00a0\u00a0In the present cases, the Constitutional Court, in addition to the said finding of a violation, declared that the applicants were entitled to different amounts of non-pecuniary damages sought (specified in the appendix to this judgment) and in thosecases where the non-enforcement proceedings were still pending, the Constitutional Court ordered the competent domestic courts to bring the impugned proceedings to a conclusion as speedily as possible.<\/p>\n 19.\u00a0\u00a0Turning to the actual sums awarded to the applicants, the Court notes that compensations granted in the present cases are significantly lower compared with the sums awarded for comparable delays in the Court\u2019s case-law. It would emphasize, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention.<\/p>\n 20.\u00a0\u00a0In the light of the material in the files and having regard to the particular circumstances of the cases, the Court considers that the sums awarded to the applicants cannot be considered sufficient and do not therefore amount to appropriate redress for the violations suffered.<\/p>\n 21.\u00a0\u00a0The Court concludes that the applicants, in these circumstances, did not lose their status as victims within the meaning of Article 34 of the Convention. The Government\u2019s objection in this regard must therefore be rejected.<\/p>\n 22.\u00a0\u00a0Finally, taking into account that the non-enforcement proceedings are still pending in respect of some of the applicants (see appended table), the Court recalls that the State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see EVT Company v.\u00a0Serbia, no. 3102\/05, \u00a7 52, 21 June 2007).<\/p>\n 23.\u00a0\u00a0In view of the above and in particular the Court\u2019s finding regarding the victim status of the applicants, the Court concludes that in the present cases the length of the non-enforcement proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n 24.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n 25.\u00a0\u00a0Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaints under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majki\u0107 v. Serbia, no.\u00a012312\/05, \u00a7 90, 20 April 2010).<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 26.\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\u00a0Damage, costs and expensesin respect of the applicants in applications nos. 60349\/13, 63099\/13 and 68381\/13<\/strong><\/p>\n 27.\u00a0\u00a0All applicants claimed compensation for non-pecuniary damage in their initial application forms, but no claims in that respect were made after the communication of the applications to the Government.In addition, only the applicant in application no. 68381\/13 requested certain sums (see appended table) in respect of the legal costs incurred in the proceedings before the domestic courts, as well as those incurred before the Court.<\/p>\n 28.\u00a0\u00a0The Government argued that no award should be made since the applicants failed to request non-pecuniary damage in their just satisfaction claims.<\/p>\n 29.\u00a0\u00a0In respect of the non-pecuniary damage suffered, the Court makes no awards and finds no exceptional circumstances which would warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589\/08, \u00a7\u00a7 76-78, 30 March 2017). However, as regards the costs and expenses, the Court awards to the applicant in application no. 68381\/13 the sum indicated in the appended table.<\/p>\n B.\u00a0\u00a0Damage, costs and expenses in respect of the applicants in applications nos.50117\/13, 50776\/13, 62038\/13 and 64201\/13<\/strong><\/p>\n 30.\u00a0\u00a0All applicants requested compensation for non-pecuniary damage, as well as the costs and expenses incurred before the domestic courts and the Courtin their observations, while referring to the already specified amounts which they had sought in their initial application forms. The sums requested are indicated in the appended table.In addition, the applicant in application no.62038\/13 requested pecuniary damages in the amounts awarded to her by the final domestic judgment itself.<\/p>\n 31.\u00a0\u00a0The Government considered the sums requested to be excessive.<\/p>\n 32.\u00a0\u00a0The Court considers that the applicantssufficiently specified their just satisfaction claims (see, mutatis mutandis, Garzi\u010di\u0107 v Montenegro, no. \u00a017931\/07, \u00a7 42, 21 September 2010) and therefore awards to the applicants the sums in respect of non-pecuniary damages as well as cost and expenses as indicated in appended table, less any amounts which may have already been paid in that regard at the domestic level. However, concerning the applicant in application no. 62038\/13, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 33.\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\u00a0Decidesto join the applications;<\/p>\n 2.\u00a0\u00a0Decides to join to the merits the Government\u2019s objection as to the applicants\u2019 victim status and dismisses it;<\/p>\n 3.\u00a0\u00a0Declaresthe applications admissible;<\/p>\n 4.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a71 of the Convention;<\/p>\n 5.\u00a0\u00a0Holdsthat there is no need to examine separately the complaint under Article 13 of the Convention;<\/p>\n 6.\u00a0\u00a0Holds<\/p>\n (a)\u00a0that the respondent State shall ensure that all necessary steps are taken to allow the domestic proceedings in those cases where they are still pending to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice;<\/p>\n (b)\u00a0that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are 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 7.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claims 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\u015f Arac\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 <\/p>\n APPENDIX<\/span><\/strong><\/p>\n
\nBranko Lubarda,
\nGeorgios A. Serghides, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/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