FOURTH SECTION
CASE OF BOŠKOĆEVIĆ v. SERBIA
(Application no. 37364/10)
 
 
JUDGMENT
Art 34 • Hinder the exercise of the right of application • Notice given to applicant by managing director of the statutory corporation employing him that dismissal conditions were met as result of his applying to the Court for the non-enforcement of final domestic court decision against it • Clear and direct threat of immediate dismissal without disciplinary proceedings if applicant failed to submit copies of all relevant correspondence with the Court • Compatibility ratione personae • Statutory corporation could not be considered a “non-governmental organisation” • Respondent Government responsible for impugned acts of managing director • Communication at issue constituted “pressure” and “intimidation” notwithstanding applicant’s continued correspondence with the Court and not being dismissed
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
5 March 2024
 
FINAL
 
05/06/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Boškoćević v. Serbia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Branko Lubarda,
 Armen Harutyunyan,
 Ana Maria Guerra Martins,
 Anne Louise Bormann,
 Sebastian Răduleţu, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 37364/10) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Milivoje Boškoćević (“the applicant”), on 8 June 2010;
the decision to give notice to the Serbian Government (“the Government”) of that application;
the decision to grant the applicant leave to represent himself before the Court (Rule 36 § 2 in fine of the Rules of Court) and to use Serbian in the written proceedings (Rule 34 § 3 (a));
the parties’ observations;
Having deliberated in private on 13 February 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns, under Articles 6 § 1 and 34 of the Convention, the non-enforcement of a final domestic court decision against a statutory corporation (javno preduzeće) and the respondent State’s alleged hindrance of the effective exercise of the applicant’s right of individual application. THE FACTS
2. The applicant was born in 1952 and lives in Štrpce, Kosovo[1]. 3. The Government were represented by their Agent, most recently Ms Z. Jadrijević Mladar. 4. The facts of the case may be summarised as follows. The domestic proceedings
5. The applicant was employed as a driver with a statutory corporation, the Šar Mountains National Park (Javno preduzeće “Nacionalni park Šar planina”) until he retired in 2017. 6. On 24 January 2000 and 17 July 2003 respectively, the Serbian government adopted two decisions whereby, inter alia, all its employees who resided and worked in Kosovo were to be paid double wages – referred to as the “Kosovo allowance”. This included the applicant. 7. On 24 February 2005, 11 January 2007, 27 December 2007, 25 December 2008 and 26 August 2010 respectively, the government amended the levels of remuneration. 8. On 30 May 2005 the applicant filed a civil claim against his employer and the Serbian Ministry of Science and Environmental Protection (“the Ministry”). He sought payment of the difference between the salary he received and the one that should have been paid taking into account the “Kosovo allowance” and an order for both respondents to be held jointly liable and to continue paying him the increased salary as provided for by the above-mentioned government decisions. 9. On 21 November 2007 the Uroševac Municipal Court (Opštinski sud) (“the Municipal Court”), displaced from Uroševac to Leskovac (see paragraph 40 below), ruled in favour of the applicant and ordered his employer and the Ministry:
(i) to pay him jointly 385,444 Serbian dinars ((RSD) – approximately 4,800 euros (EUR) at the relevant time) in respect of the difference between the wages he had received from 1 June 2002 to 30 September 2006 and those granted by the government, plus statutory interest accrued in the meantime on a monthly basis;
(ii) to continue paying the increased wages for as long there was a legal basis to do so; and
(iii) to pay him jointly RSD 72,068 (approximately EUR 900) for his legal costs. 10. The applicant’s employer and the Ministry appealed against that judgment. 11. On 21 January 2009 the Priština District Court (Okružni sud), displaced from Priština to Niš (see paragraph 40 below), partly upheld and partly reversed that judgment. In particular, it upheld the rulings under (i) and (iii) in respect of the applicant’s employer only (hereinafter “the debtor”) as severally liable and rejected the remainder of the ruling. In doing so, the District Court held, inter alia, that the government could not be held liable for the debt, given that its responsibility was limited to the approval of the corporation’s annual business plans, the financing of programmes concerning development, and the protection of the national park, rather than the financing of employees’ salaries. 12. On 12 May 2009 the Municipal Court issued a writ of enforcement in respect of the judgment, which had become final. 13. It would appear that during an unspecified period the debtor’s bank account was blocked by the Central Bank of Serbia owing to other pending enforcement orders, and its employees stopped receiving their salaries.
14.  Аll the debtor’s employees in the same position as the applicant received an offer from the debtor to sign individual (mutual) binding agreements, whereby the employees would withdraw their respective applications for enforcement, while the debtor was to pay the outstanding debts once its account had been unblocked, or, at the latest, within fifteen days from the date it received the necessary funds from the Ministry’s Environmental Protection Fund. 15. On 16 April 2010 the Constitutional Court delivered a decision in which it held, inter alia, that the part of the Serbian government’s decision of 17 July 2003 (see paragraph 6 above) prescribing that all of its employees who resided and worked in Kosovo were to be paid double wages ceased to be valid as of the date of the publication of its decision. 16. On 20 May 2010 the applicant complained to the debtor’s management that he was being forced to sign the above-mentioned agreement (see paragraph 14 above) in order to receive the outstanding wages owed to him from July 2009. He argued that he would never have considered signing such an agreement if he were not in such a desperate financial situation, which had been caused by the debtor. Lastly, he stated that, if he signed the offer, the waiver of his rights would be against his will. 17. On 21 May 2010 the applicant concluded an “Agreement on the Method of Implementation of a Court Judgment” (“the agreement”) with the debtor as regards the execution of the judgment of 21 January 2009 (see paragraph 11 above) and as provided for by the debtor’s offer explained in paragraph 14 above. 18. On 25 May 2010 the applicant withdrew his application for enforcement and on 28 May 2010 the enforcement court delivered a decision terminating the enforcement proceedings. 19. On 9 July 2010, a little over a month after the applicant had lodged the present application with the Court, he was given notice, signed by the debtor’s managing director acting as its representative and certified with the official seal, that he had breached his employment duties and thus fulfilled the conditions for dismissal. In particular, he was reproached for, inter alia, “complaining to the Court about the corporation’s business, analysing problems and looking for someone to blame among members of the government, and doing so without consulting the director”. He was also reproached for “refusing, on grounds of privacy, to disclose a copy of the documents which he had submitted to the Court”. The applicant was warned that, should he continue in the same manner, he would be dismissed without further notice and without disciplinary proceedings being conducted. 20. On 18 June 2013 the applicant lodged a constitutional appeal against the agreement (see paragraph 17 above). On 3 June 2014 the Constitutional Court rejected by means of a decision the applicant’s appeal pursuant to Article 36 § 1 (7) of the Constitutional Court Act, finding that the agreement had been a private-law contract between the parties and not an individual act within the meaning of Article 170 of the Constitution which could be challenged before it. The debtor’s status
21. The debtor in the present case is a statutory corporation founded under section 23 of the National Parks Act (Zakon o nacionalnim parkovima), enacted on 26 May 1993 and published in the Official Gazette of the Republic of Serbia (“OG RS” – nos. 39/93, 44/93, 53/93, 67/93, 48/94 and 101/05[2]) to administer the Šar Mountains National Park. The establishment of the debtor was registered in the court register of the Commercial Court in Priština on 10 November 1993 and transferred afterwards to the Serbian Business Registers Agency, by a decision of 30 June 2005. 22. Pursuant to the above-mentioned Act (section 23(2)), the debtor’s assets belong to the State. The debtor cannot be subject to insolvency proceedings (section 8(4)). The government has the power to appoint and dismiss the managing director and the members of the Managing and Supervisory Board (section 17). The debtor’s employees are represented on those boards in the manner prescribed by the corporation’s articles of association. 23. In accordance with the available information, it would appear that as of 7 October 2015 the debtor is no longer in possession of premises in Štrpce, which are instead occupied by Kosovo institutions. However, it continues to operate as an active Serbian statutory corporation and, according to the applicant’s version (not challenged, on this point, by the Government), Serbia continues to pay wages to the debtor’s employees from its budget. In addition, at the date of the latest information available to the Court (30 January 2024), the current accounts of the debtor were no longer blocked. RELEVANT LEGAL FRAMEWORK AND PRACTICE
the constitution of the republic of serbia (ustav republike srbije; publisehd in the official gazette of the republic of serbia – og rs - no. 98/06)
24. Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.
the constitutional court act (zakon o ustavnom sudu; published in og rs nos. 109/07, 99/11 and 18/13)
25. Article 36 § 1 (7) of the Constitutional Court Act provides that the Constitutional Court shall reject a written submission aimed at the institution of proceedings before it whenever “other preconditions”, required by law, for the conduct of those proceedings or the adjudication of the complaint in question have not been satisfied. Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04)
26. Sections 2 and 5 of this Act provide that enforcement proceedings are instituted upon the application of a creditor and are to be conducted urgently. 27. Section 6 provides that insolvency proceedings cannot be instituted in respect of State bodies, foundations, agencies or the Central Bank, or in respect of legal entities established, and exclusively or predominantly funded, by the State. 28. In accordance with sections 42 and 49, an application for enforcement should specify the creditor and the debtor, the enforcement title, the obligations of the debtor, the means and subject of enforcement, as well as any other information necessary for enforcement. There are several means of enforcing a monetary claim, such as the sale of movable or immovable property, the transfer of a monetary claim, the transfer of a claim for the delivery of movable or immovable property, the liquidation of other property rights, the transfer of funds kept in a bank account, or the sale of shares in companies. 29. In accordance with section 51, enforcement proceedings can be terminated without the enforcement debtor’s consent if the enforcement creditor withdraws the application for enforcement in full or in part. A decision to terminate proceedings has the effect of revoking all the enforcement actions that have already been taken, if doing so does not affect the rights of third parties. OBLIGATIONS ACT (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and OG FRY no. 31/93)
30. Sections 111 to 117 of this Act set down the conditions for the annulment of a contract, owing to an act or acts of bad faith by one or more of the contracting parties. The right to request annulment in such circumstances expires one year after the requesting party becomes aware of the grounds for annulment. In any event, that right expires three years from the date of the conclusion of the contract. A contracting party whose bad faith has resulted in the annulment of the contract shall be liable to the other contracting party for loss sustained as a result of the annulment, if the latter party was not aware or could not have been aware of the existence of the grounds for annulment.
status of statutory corporations
31. The legal status of statutory corporations in Serbia is primarily defined by: (i) the Statutory Corporations Act 2016 (Zakon o javnim preduzećima, published in OG RS nos. 15/2016 and 88/2019); (ii) the Statutory Corporations Act 2000 (Zakon o javnim preduzećima i obavljanju delatnosti od opšteg interesa, published in OG RS nos. 25/00, 107/02, 108/02 and 123/07); (iii) the Public Property Act (Zakon o javnoj svojini, published in OG RS nos. 72/2011, 88/2013, 105/2014, 104/2016, 108/2016, 113/2017, 95/2018 and 153/2020); (iv) the State Administration Act (Zakon o državnoj upravi, published in OG RS nos. 79/05, 101/07, 95/10, 99/2014, 47/2018 and 30/2018); (v) the Communal Services Act 1997 (Zakon o komunalnim delatnostima, published in OG RS nos. 16/97 and 42/98); (vi) the Communal Services Act 2011 (Zakon o komunalnim delatnostima, published in OG RS nos. 88/2011, 104/2016 i 95/2018); (vii) the Corporations Act 1996 (Zakon o preduzećima, published in OG FRY nos. 29/96, 33/96, 29/97, 59/98, 74/99, 9/01 and 36/02); (viii) the Corporations Act 2004 (Zakon o privrednim društvima, published in OG RS no. 125/04); (ix) the Corporations Act 2011 (Zakon o privrednim društvima, published in OG RS nos. 36/11, 99/11 99/2011, 83/2014, 5/2015, 44/2018, 95/2018, 91/2019 and 109/2021); (x) the Insolvency Act 2009 (published in OG RS nos. 104/09, 99/2011, 71/2012); and, in exceptional cases, (xi) sections 6 and 33(2) of the Insolvency Procedure Act 2004 (Zakon o stečajnom postupku, published in OG RS nos. 84/04 and 85/05). The latter was repealed by the Insolvency Act 2009, which entered into force on 24 December 2009. However, in accordance with section 207(1) of the Insolvency Act 2009, the former Act is applicable to all insolvency proceedings instituted prior to 24 December 2009. 32. On the basis of this legislation, statutory corporations are independent legal entities distinct from their founders, which may be the State’s central government or local government bodies (“the founder(s)”). The purpose of the incorporation of a statutory corporation and the aim of its work is, inter alia, to provide public-interest services[3] and to make a profit. 33. State-owned capital comprises capital initially or subsequently invested by the State and the right to use State-owned assets and rights. Statutory corporations are liable for their commitments in respect of all of their assets. Investors acquire stocks or shares equivalent to their capital investment and that investment becomes the corporation’s property. 34. Section 33(2) of the repealed Insolvency Procedure Act 2004 (see paragraph 31 above) provided that statutory corporations could be the subject of ordinary insolvency proceedings, unless otherwise provided for by law. The Insolvency Act 2009 does not contain any explicit provisions on insolvency proceedings in respect of statutory corporations. However, section 14(1) does provide that insolvency proceedings may not be conducted against, inter alia, legal entities which have been incorporated by a central or local government founder and are exclusively or mostly financed from the public income allocated to them or from the founder’s budget. Section 14(3) further provides that the founders/owners of a legal entity which is exempted from being the subject of insolvency proceedings are to be held jointly liable, with the entity’s members/shareholders, for the debts of that legal entity. 35. In accordance with sections 11 to 15 of the Statutory Corporations Act 2000, as in force at the time of the events, a statutory corporation’s founder had the power to appoint and dismiss the managing director and the members of the Managing and Supervisory Boards, which were the main organs of such corporations. The corporation’s employees were represented on the boards in the manner prescribed by its articles of association. In accordance with sections 21 and 27 of the Act, the following important decisions were not able to be adopted without the founder’s prior approval: the distribution of profits, the adoption and amendment of articles of association (statut), changes to the legal structure of the statutory corporation, the organisation of the corporation, investments in other corporations, the setting of tariffs and general conditions for the delivery of services and products. The founder also approved the corporation’s annual business plan. Finally, a statutory corporation was obliged to transfer a portion of its profit to the founder. The Statutory Corporations Act 2016, currently in force, contains substantially the same provisions, with an exception concerning the Managing Board, as this organ is no longer considered to be the main organ of statutory corporations (see sections 17, 24-26, 58, 59(7) and 69). 36. The directors of a statutory corporation are treated as officials who perform a public function. They represent the company, organise and manage the work process and are responsible for the legality of the company’s work (see sections 25-26 of the Statutory Corporations Act 2016). STATUS OF THE STATUTORY CORPORATIONS IN CHARGE OF NATIONAL PARKS
37. The legal status of statutory corporations in charge of national parks in Serbia in general is primarily defined by: (i) the National Parks Act 1993 (Zakon o nacionalnim parkovima, published in OG RS nos. 39/93, 44/93, 53/93, 67/93, 48/94, 101/05 and 36/09); (ii) the National Parks Act 2015 (Zakon o nacionalnim parkovima, published in OG RS nos. 84/2015 and 95/2018); and (iii) the Nature Preservation Act (Zakon o zaštiti prirode, published in OG RS nos. 36/2009, 88/2010, 91/2010, 14/2016, 95/2018 and 71/2021). The Decision on the Harmonisation of the Operations of the Šar Mountains National Park Statutory Corporation with the Statutory Corporations Act also defines the legal status of the debtor. 38. In accordance with the aforementioned legislation, the protection, development and management of national parks are activities of general interest. Only statutory corporations can manage national parks. Financing for national parks is provided, inter alia, from budgetary funds, funds from the Environment Protection Fund, fees obtained from the use of the protected area, income generated from the performance of activities and the management of the protected area. The debtor is the only statutory corporation managing the Šar Mountains National Park.
case-law of the constituTional court
39. The Government submitted several decisions of the Constitutional Court, including decisions Už. no. 143/2007 of 16 July 2009 and Už.no. 144/2007 of 24 February 2010. In the first decision, the Constitutional Court decided in favour of the claimant and found violations of her right to work and of her right to a fair trial. In that case, the claimant had initiated civil proceedings against her ex-employer, seeking payment of the minimum wage, but her claim had been rejected at two levels of jurisdiction as unfounded, as the civil courts had determined that she had waived her right to seek the aforementioned payment when concluding an agreement on mutual rights and obligations with her employer. The Constitutional Court found that the domestic courts had violated her right to fair compensation for her work by not allowing her claim, since an employer was obliged to pay an employee all accrued wages, contributions and other income in the event of the termination of his or her employment, in accordance with the Labour Act. In decision Už. no. 144/2007 of 24 February 2010, the Constitutional Court reached a similar conclusion.
the Supreme court’s act on courts displaced from kosovo
40. On 21 March 2000 the Supreme Court issued an act, no. ISu 69/00, by which it was established that the courts from the territory of Kosovo, as a part of the judicial system of Serbia, would continue to operate in new circumstances by being displaced in other cities (see paragraphs 9 and 11 above). THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41. Relying on Article 6 § 1 of the Convention, the applicant complained about the non-enforcement of the final domestic decision given in his favour by the Priština District Court (see paragraph 11 above). In particular, he claimed that he had signed the agreement described in paragraph 17 above against his will and that, as a result, he had been obliged to withdraw his application for enforcement (see paragraph 18 above). He further claimed that the respondent State was liable for the debtor’s acts since the debtor was a “governmental organisation”. 42. In so far as relevant, Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Arguments by the partiesThe Government

43. The Government raised several objections as to the admissibility of the applicant’s complaint. In particular, they submitted that the acts of the debtor could not be attributed to the State and that the State could not be held responsible for the non-enforcement of decisions against statutory corporations. They further argued that the applicant had not exhausted all effective domestic remedies. In particular, they contended that the enforcement proceedings had not been terminated on the initiative of the authorities, but at the applicant’s request following the conclusion of the agreement. Thus, according to the Government, it was not possible for him to raise the issue of the validity of the termination of the enforcement proceedings without prior examination of the validity of the agreement which had served as the ground for the termination. In that connection, the Government noted that the applicant had never contested the validity of that agreement before the domestic courts. In the Government’s submission, he could have initiated civil proceedings in the appropriate courts seeking the annulment of the agreement, which he had failed to do. Moreover, if he had initiated such proceedings, the applicant would have had the opportunity to lodge a constitutional appeal in the event that the civil court decided to reject or dismiss his application for the annulment of the agreement. Additionally, they argued that a constitutional appeal would have been an effective legal remedy and submitted various decisions in which the Constitutional Court had examined cases sufficiently similar to the applicant’s in respect of their factual and legal background (see paragraph 39 above). 44. The Government also submitted that the applicant could have refused to conclude the agreement and that no sanctions or other measures could have been imposed on him in that event. Consequently, in the event that he was unable to obtain the full enforcement of the final domestic decision given in his favour, as a result of the debtor’s blocked accounts, he could have challenged the non-enforcement of his pecuniary claim before the Constitutional Court. However, in the Government’s submission, the applicant was now precluded from doing so, as he had opted for the agreement instead of challenging the non-enforcement and receiving the agreed amount of payment. 45. Lastly, the Government submitted that the debtor’s bank accounts were active and that the compulsory payment procedure was available. Additionally, other means of enforcement against the debtor were equally possible, such as the sale of its property. The applicant
46. The applicant argued that the validity of the agreement could not have been contested before the domestic courts. He further noted that he had lodged a constitutional appeal against the agreement, which had been rejected (see paragraph 20 above).

Article of the Convention at issue: Article 34
Outcome: violation