THIRD SECTION
\nCASE OF ISENI v. SERBIA
\n(Application no. 43326\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Iseni 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 18 September 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. 43326\/11) against the Republic of 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 MitatIseni (\u201cthe applicant\u201d), on 18 July 2011.<\/p>\n 2.\u00a0\u00a0The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms N. Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 10 March 2017 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1954 and lives in the former Yugoslav Republic of Macedonia.<\/p>\n 5.\u00a0\u00a0In 1990 the local authorities expropriated a flat in Belgrade belonging to the applicant. The size of the flat was 31.80 square metres.<\/p>\n 6.\u00a0\u00a0On 16 December 2010 the Constitutional Court of Serbia ordered the local authorities in question to allocate the applicant a suitable replacement flat or to pay him compensation not lower than the market value of the flat in accordance with the Expropriation Act 1995[1]. The decision entered into force on 23 February 2011 (see paragraph 8 below).<\/p>\n 7.\u00a0\u00a0Whilst a number of steps have been taken (notably, the tax authorities estimated the market value of the flat at 209,015 Serbian dinars (RSD) per square metre on 3 February 2017 and the applicant accepted that assessment on 1 June 2017), the Constitutional Court\u2019s decision in question has not yet been enforced.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 8.\u00a0\u00a0Pursuant to Article 171 of the Constitution of Serbia, the decisions of the Constitutional Court are final and binding. Pursuant to section 89 of the Constitutional Court Act[2], the decisions of the Constitutional Court finding a breach of human rights enter into force when they are served on the parties to the proceedings.<\/p>\n THE LAW<\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 9.\u00a0\u00a0The applicant complained about the non-enforcement of the decision of the Constitutional Court mentioned in paragraph 6 above under Article\u00a01 of Protocol No. 1 to the Convention, which reads as follows:<\/p>\n \u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 10.\u00a0\u00a0The Government did not raise any admissibility objections. As this complaint is neither manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 11.\u00a0\u00a0The Court has frequently found violations of Article 1 of Protocol No. 1 in cases raising issues similar to those raised in the present case (see Milisavljevi\u0107 v. Bosnia and Herzegovina, no. 7435\/04, 3 March 2009; Krsti\u0107 v.\u00a0Serbia, no. 45394\/06, 10 December 2013; and Rafailovi\u0107 and Stevanovi\u0107 v.\u00a0Serbia, nos. 38629\/07 and 23718\/08, 16 June 2015).<\/p>\n 12.\u00a0\u00a0Having 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 and the fact that the final decision under consideration in the present case has not been enforced for more than seven years, the Court finds that there has been a breach of Article 1 of Protocol No. 1.<\/p>\n II.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 13.\u00a0\u00a0The applicant maintained that there was a violation of Articles 6 and 13 of the Convention, relying essentially on the same grounds.<\/p>\n 14.\u00a0\u00a0The Government contested that argument.<\/p>\n 15.\u00a0\u00a0The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.<\/p>\n 16.\u00a0\u00a0Having regard to its finding under Article 1 of Protocol No. 1 (see paragraph 12above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 and 13 (see, for example, Krsti\u0107, cited above, \u00a7 88, with further references).<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 17.\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<\/strong><\/p>\n 18.\u00a0\u00a0The applicant claimed 296,742 euros (EUR) in respect of pecuniary damage and EUR 300,000 in respect of non-pecuniary damage.<\/p>\n 19.\u00a0\u00a0The Government considered the amounts claimed to be excessive.<\/p>\n 20.\u00a0\u00a0The Court considers that the most appropriate form of redress in this case is to ensure the full enforcement of the domestic decision in question (see, mutatis mutandis, Jeli\u010di\u0107 v. Bosnia and Herzegovina, no.\u00a041183\/02, \u00a7\u00a053, ECHR 2006\u2011XII; R. Ka\u010dapor and Others v. Serbia, nos.\u00a02269\/06 and 5 others, \u00a7 126, 15 January 2008; and Krsti\u0107, cited above, \u00a7\u00a7 92-94). Having regard to the size of the flat in issue (see paragraph 5 above) and the market value of the flat per square metre assessed by the competent authorities and accepted by the applicant (see paragraph 7 above), the Court awards the applicant EUR 56,000 in respect of pecuniary damage, less any sums which may have already been paid in that regard at the domestic level.<\/p>\n 21.\u00a0\u00a0The Court further awards the applicant EUR 4,000 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 22.\u00a0\u00a0The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 23.\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 1 of Protocol No.\u00a01 to the Convention;<\/p>\n 3.\u00a0\u00a0Holdsthat there is no need to examine separately the complaints under Articles6 and 13 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsthe following amounts, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 56,000 (fifty six thousand euros), less any amounts which may have already been paid in that regard at the domestic level,in respect of pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;<\/p>\n (b)\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 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 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 [1]Zakon o eksproprijaciji; published in the Official Gazette of the Republic of Serbia nos. 53\/95, 23\/01, 20\/09, 55\/13 and 106\/16.
\nBrankoLubarda,
\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
\n[2]Zakon o Ustavnomsudu; published in the Official Gazette of the Republic of Serbia nos. 109\/07, 99\/11, 18\/13, 40\/15 and 103\/15.<\/p>\n