THIRD SECTION
\nCASE OF \u0106ORI\u0106 v. SERBIA
\n(Application no. 16796\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n25 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of \u0106ori\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, andStephen Phillips, Section Registrar,<\/p>\n Having deliberated in private on 4 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. 16796\/15) 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, Ms Vinka\u0106ori\u0107 (\u201cthe applicant\u201d), on 31 March 2015.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr D. Kozomora, a lawyer practising in Novi Sad.The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms N. Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 28 June 2016 the complaint concerning the length of the proceedings was communicated to the Government while the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1951 and lives in Novi Sad.<\/p>\n 5.\u00a0\u00a0The proceedings began on 19 November 1999 when a third private partybroughta lawsuitconcerninghis tenancy rights in respect of a flat owned by a respondent. The applicant acted as an intervener in these proceedings on the side of the respondent since she had previously signed a tenancy agreement with him.<\/p>\n 6.\u00a0\u00a0On 8 April 2003 the first instance court suspended the proceedings (mirovanjepostupka).<\/p>\n 7.\u00a0\u00a0On 20 August 2003, 20 October 2005 and 13 May 2009 the first instance court terminated the proceedings having deemed the lawsuit as withdrawn due to the fact that the parties had failed to appear at the scheduled hearings. All three of these decisions weresubsequently quashed on appeal.<\/p>\n 8.\u00a0\u00a0On 29 March 2012 the first instance court rendered a judgment in favour of the respondent and the applicant.<\/p>\n 9.\u00a0\u00a0On 22 August 2012 this judgment was upheld on appeal.<\/p>\n 10.\u00a0\u00a0On 28 September 2012 the applicant lodged a further appeal with the Constitutional Court alleging a violation of the right to a hearing within a reasonable time.<\/p>\n 11.\u00a0\u00a0On 10 February 2015 the Constitutional Court found a violation of the applicant\u2019s right to a hearing within a reasonable time, but rejected her claim for non-pecuniary damages stating that the finding of a violation alone constituted sufficient redress for the said breach. In so doing it noted, inter alia,that the applicant had significantly contributed to the length of proceedings in question.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 12.\u00a0\u00a0The applicant complained that the length of the proceedings had been incompatible with the \u201creasonable time\u201d requirement, laid down in Article 6 \u00a7 1 of the Convention, which reads as follows:<\/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 13.\u00a0\u00a0The period to be taken into consideration 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 (see Simi\u0107 v.\u00a0Serbia, no.\u00a029908\/05, \u00a7\u00a015, 24\u00a0November 2009).<\/p>\n 14.\u00a0\u00a0The period in question ended on 22 August 2012 when the Court of Appeals rendered the second instance judgment. It thus lasted for 8 years and 6 months at two levels of jurisdiction.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 15.\u00a0\u00a0The Government submitted that the applicant could not claim to be a victim of the alleged violation.<\/p>\n 16.\u00a0\u00a0The Court considers that the Government\u2019s objection is closely linked to the substance of the applicant\u2019s complaint and, therefore, must be joined to the merits.<\/p>\n 17.\u00a0\u00a0The Court further notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and is not inadmissible on any other grounds. It must, therefore, be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 18.\u00a0\u00a0In the Government\u2019s opinion, the finding of a violation alone constituted sufficient redress for the breach of the applicant\u2019s right to a hearing within a reasonable time because of her own contribution to the length complained of, particularly in view of her failure to appear at two scheduled hearings which ultimately led to the withdrawal of the lawsuit.<\/p>\n 19.\u00a0\u00a0The applicant disagreed.<\/p>\n 20.\u00a0\u00a0The Court notes that an applicant\u2019s status as a \u201cvictim\u201d within the meaning of Article 34 of the Convention depends on whether the domestic authorities have 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.\u00a016231\/07, \u00a7\u00a026, 24 May 2011; Cocchiarella v. Italy [GC], no.\u00a064886\/01, \u00a7\u00a071, ECHR\u00a02006\u2011V and Cataldo v. Italy (dec.) no. 45656\/99, 3 June 2004).<\/p>\n 21.\u00a0\u00a0The Court, in this respect, notes that the Constitutional Court found that the applicant\u2019s right to a hearing within a reasonable time had indeed been violated (see paragraph 9 above), thereby acknowledging the breach complained of and, in effect, satisfying the first condition laid down in the Court\u2019s case-law.<\/p>\n 22.\u00a0\u00a0The applicant\u2019s 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.\u00a0Slovakia (dec.), no.\u00a067299\/01, 19 October 2004).<\/p>\n 23.\u00a0\u00a0The Court observes that in length-of-proceedings 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 – while being lower than those awarded by the Court – are still not unreasonable (seeCocchiarella, cited above, \u00a7\u00a7\u00a096,97).<\/p>\n 24.\u00a0\u00a0In the present case, however, the Constitutional Court,in addition to the said finding of a violation, declared that the applicant was not entitled to the compensation of non-pecuniary damage.<\/p>\n 25.\u00a0\u00a0In view of the material in the case file and having regard to the particular circumstances of the proceedings in question, the Court considers that the mere recognition of the breach of the applicant\u2019s right to a hearing within a reasonable time without any award on account of the non\u2011pecuniary damage suffered cannot be considered as sufficient and does not, therefore, amount to appropriate redress for the violation suffered.<\/p>\n 26.\u00a0\u00a0The Court thus concludes that the applicant did not lose her status as a victim within the meaning of Article 34 of the Convention. The Government\u2019s preliminary objection in this regard must,hence, be rejected.<\/p>\n 27.\u00a0\u00a0In view of the above, and particularly taking into account that theimpugned proceedings lasted for 8 years and almost 6 months within the Court\u2019s competence rationetemporis at two levels of jurisdiction, the Court concludes that the length of the proceedings at issue was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n 28.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 29.\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 30.\u00a0\u00a0The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damages.<\/p>\n 31.\u00a0\u00a0The Government contested this claim.<\/p>\n 32.\u00a0\u00a0The Court is satisfied that the applicant has undoubtedly suffered distress on account of the delay in the proceedings at issue. It, therefore, awards the applicant EUR 1,500 in respect of the non-pecuniary damage suffered.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/p>\n 33.\u00a0\u00a0The applicant also claimed EUR 1,097 for the costs and expenses incurred before the domestic courts and before the Court.<\/p>\n 34.\u00a0\u00a0The Government contested this claim.<\/p>\n 35.\u00a0\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR\u00a0500 covering costs under all heads, less any amounts which may have already been paid in that regard at the domestic level.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 36.\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\u00a0Decides to join to the merits the Government\u2019spreliminaryobjectionas to the applicant\u2019svictim status and dismissesit;<\/p>\n 2.\u00a0\u00a0Declares the applicationadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthattherehasbeen a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant within three months the following amounts:<\/p>\n (i)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of the non-pecuniary damage suffered, and<\/p>\n (ii)\u00a0\u00a0EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0thatthe amounts specified above shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;<\/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 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 25 September 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\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
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\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