THIRD SECTION
\nCASE OF HRUSTI\u0106 AND OTHERS v. SERBIA
\n(Application no. 8647\/16 and 2 others \u2013 see appended list)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Hrusti\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, andFato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in three applications (nos. 8647\/16, 12666\/16 and 20851\/16) against the Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Serbian nationals, Ms HasibaHrusti\u0107 (\u201cthe first applicant\u201d), Mr DragoslavStojanovi\u0107 and Ms OliveraStojanovi\u0107 (\u201cthe second and third applicant\u201d), and Ms Mirjana Ili\u0107 (\u201cthe fourth applicant\u201d), on 5 and 26 February and 7 April 2016, respectively.<\/p>\n 2.\u00a0\u00a0The second, third and fourth applicants were represented by Mr\u00a0Z.\u00a0Veli\u010dkovi\u0107, a lawyer practicing in Gad\u017ein Han. The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms\u00a0N.\u00a0Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 10 November 2016 the complaints concerning the length of civil and administrative proceedings were communicated to the Government and the remainders of the applications were 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 applicants\u2019 personal details as well as the facts in relation to each case are set out in the Annex to this judgment.<\/p>\n 5.\u00a0\u00a0The applicants complained of the excessive length of different civil and administrative proceedings under Article 6 \u00a7 1 of the Convention.<\/p>\n 6.\u00a0\u00a0In case of the first and fourth applicant the Constitutional Court rejected their the constitutional appeals, whereas in case of the second and third applicant the Constitutional Court found a violation of a right to a trial within reasonable time, but awarded no damages.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0JOINDER OF THE APPLICANT\u2019S COMPLAINTS<\/p>\n 7.\u00a0\u00a0The Court considers that, in accordance with Rule 42 \u00a7 1 of the Rules of Court, the applicants\u2019 applications should be joined, given their similar factual and legal background.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 8.\u00a0\u00a0The applicants 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 A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0As regards the non-exhaustion of domestic remedies<\/em><\/p>\n 9.\u00a0\u00a0The Government submitted that the first and fourth applicant had failed to properly exhaust domestic remedies. Specifically, they claimed that the said applicants had failed to make proper use of the constitutional appeal procedure.<\/p>\n 10.\u00a0\u00a0The first and fourth applicants contested this and maintained that they had complained before the Constitutional Court in a proper manner.<\/p>\n 11.\u00a0\u00a0The Court has consistently held that the rule on the exhaustion of domestic remedies, under Article 35 \u00a7 1 of the Convention, requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see, for example, Vu\u010dkovi\u0107 and Others v. Serbia (preliminary objection) [GC], nos.\u00a017153\/11 and 29 others, \u00a7 72, 25 March 2014).<\/p>\n 12.\u00a0\u00a0In the present case, the applicants had, in their constitutional appeals, relied on Article 32 of the Serbian Constitution which corresponds to Article 6 of the Convention and had complained about the assessment of evidence and the length of the impugned proceedings. In the Court\u2019s view, by so doing the first and fourth applicants provided the national authorities with an opportunity to properly address their complaints, an opportunity which is in principle intended to be afforded to Contracting States by Article\u00a035\u00a0\u00a7\u00a01 of the Convention (see Mur\u0161i\u0107 v. Croatia [GC], no.\u00a07334\/13, \u00a7\u00a072, ECHR 2016; andJoksimovic v. Serbia, no.\u00a037929\/10, \u00a7\u00a021, 10\u00a0October\u00a02017). The Court thus finds that the first and fourth applicants had properly exhausted domestic remedies. The Government\u2019s preliminary objection in this respect must therefore be dismissed.<\/p>\n 2.\u00a0\u00a0As regards the loss of victim status<\/em><\/p>\n 13.\u00a0\u00a0The Government submitted that the second and third applicants could not claim to be victims of the alleged violation.<\/p>\n 14.\u00a0\u00a0The Court considers that the Government\u2019s objection is closely linked to the substance of the applicants\u2019 complaint and should therefore be joined to the merits.<\/p>\n 3.\u00a0\u00a0Conclusion<\/em><\/p>\n 15.\u00a0\u00a0The Court otherwise considers that the applicants\u2019 applications are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0As regards the first and fourth applicants (Ms HasibaHrusti\u0107 and Ms\u00a0Mirjana Ili\u0107, applications nos. 8647\/16 and 20851\/16)<\/em><\/p>\n 16.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979\/96, \u00a7 43, ECHR 2000-VII).The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p.\u00a039, \u00a7\u00a017).<\/p>\n 17.\u00a0\u00a0The Court has frequently found violations of Article 6 \u00a7 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).<\/p>\n 18.\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 cases. Having regard to its case-law on the subject (see, for example, Nemet v.\u00a0Serbia, no.\u00a022543\/05, 8 December 2009, Blagojevi\u0107 v. Serbia,no.\u00a063113\/13, 28\u00a0March 2017 and Kovi\u0107 and Others v. Serbia, no. 39611\/08 and 2 others, 4 April 2017), the Court considers that in the instant cases the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n There has accordingly been a breach of Article 6 \u00a7 1.<\/p>\n 2.\u00a0\u00a0As regards the second and third applicants (Mr\u00a0DragoslavStojanovi\u0107 and Ms OliveraStojanovi\u0107, application no. 12666\/16)<\/em><\/p>\n 19.\u00a0\u00a0The Government submitted that as the second and third applicants had obtained decision from the Constitutional Court they had therefore lost their victim status (see paragraph 13 above). In the Government\u2019s opinion, the finding of a violation alone constituted sufficient redress for the breach of the applicants\u2019 right to a hearing within a reasonable time.<\/p>\n 20.\u00a0\u00a0The second and third applicant disagreed.<\/p>\n 21.\u00a0\u00a0The Court recalls that an applicant\u2019s status as a \u201cvictim\u201d 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 Cocchiarella v.\u00a0Italy [GC], no. 64886\/01, \u00a7 71, ECHR 2006-V; and Cataldo v. Italy (dec.), no. 45656\/99, 3 June 2004).<\/p>\n 22.\u00a0\u00a0The Court, in this respect, notes that the Constitutional Court found that the applicants\u2019 right to the determination of their claim within a reasonable time had been violated \u2013 thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court\u2019s case law.<\/p>\n 23.\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 and Kovi\u0107, citedabove, \u00a7 18).<\/p>\n 24.\u00a0\u00a0In this connection, the Court recalls that in length-of-proceedings cases one of the characteristics of sufficient redress which may remove a\u00a0litigant\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 25.\u00a0\u00a0In the present case, however, the Court notes that the Constitutional Court awarded no compensation at all.<\/p>\n 26.\u00a0\u00a0The Court therefore concludes that the second and third applicants did not lose their status as 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, the entirety of the relevant facts, and in particular its finding regarding the victim status of the applicants, the Court concludes that in the present case the length of the proceedings in question was excessive and did not 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 III.\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, costs and expenses<\/strong><\/p>\n 30.\u00a0\u00a0The applicants claimed various amounts in respect of the non-pecuniary damages suffered by each of them. The applicants also requested various sums in respect of legal costs incurred in the proceedings before both the domestic courts and the Court. The sums requested are indicated in the Annex to the judgment. In addition, the second applicants requested to be awarded pecuniary damage comprising of the value of the plots of land, they had allegedly lost in their dispute, whereas the third applicant requested salaries she would have earned had she remained employed.<\/p>\n 31.\u00a0\u00a0The Government contested the above-mentioned claims.<\/p>\n 32.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law (seeBlagojevi\u0107 v. Serbia,no. 63113\/13, \u00a7 30, 28 March 2017, and Kovi\u0107 and Others v. Serbia, no. 39611\/08 and 2 others, \u00a7\u00a7\u00a028-31, 4\u00a0April\u00a02017) the Court considers it reasonable to award to the applicants the sums indicated in the appended table in respect of non-pecuniary damage and costs and expenses, less any and all amounts which may have already been paid in that regard at the domestic level.<\/p>\n 33.\u00a0\u00a0As regards the requests for pecuniary damage of the second and third applicants, the Court finds them unsubstantiated. In view of the violation found, specifically its procedural character, the court sees no causal link between the violation found and the pecuniary damage alleged. It therefore rejects their claims in this respect.<\/p>\n B.\u00a0\u00a0Default interest<\/strong><\/p>\n 34.\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 the applications;<\/p>\n 2.\u00a0\u00a0Decides to join to the merits the Government\u2019s preliminary objection as to the second and third applicant\u2019s victim status, and dismisses it;<\/p>\n 3.\u00a0\u00a0Declares the applications admissible;<\/p>\n 4.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention in respect of each applicant;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\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 deduction of any amounts which may have already been paid on this basis;<\/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 6.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 January 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<\/p>\n
\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