CASE OF RIĐIĆ AND OTHERS v. SERBIA

1. The case originated in six separate applications against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
2. The applicants were all Serbian nationals. Additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, are set out in the Annex to this judgment.
3. The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić.
4. The applicants complained, under Article 6 § 1 of the Convention, about the length of the enforcement proceedings in question, simultaneously maintaining that a constitutional appeal would not have been an effective domestic remedy in the specific circumstances of their cases.
5. On 6 May 2013 the applications were communicated to the Government. On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1). This case was thus assigned to the newly composed Third Section (Rule 52 § 1).
I. THE CIRCUMSTANCES OF THE CASE
6. The facts, as submitted by the parties, may be summarised as follows.
7. All applicants were employed by Rudnik bakra Majdanpek, a copper mining company based in Majdanpek (“the debtor”).
8. Between 2001 and 2005 they all instituted separate civil suits against the debtor, seeking pecuniary redress on various grounds.
B. As regards the first applicant (Mr Ilija Riđić, app. no. 53736/08 )
9. On 10 June 2002 the Majdanpek Municipal Court ruled in favour of the first applicant and ordered the debtor to pay him:
(a) the salary arrears due between 31 May 1998 and 20 July 2001, plus statutory interest;
(b) the pension, disability, health and other insurance contributions due for the same period; and
10. On 2 October 2002 the judgment became final.
11. Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the first applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
12. On 10 January 2003 the court accepted the first applicant ’ s request and issued an enforcement order. On 21 January 2004 the same court issued an additional order to the same effect.
13. On 18 January 2006 the enforcement proceedings were stayed.
14. In May 2011, following their resumption, the first applicant was paid the full amounts awarded in his favour.
C. As regards the second applicant (Mr Slobodan Srbu, app. no. 53737/08 )
15. On 25 April 2002 the Majdanpek Municipal Court ruled in favour of the second applicant and ordered the debtor to pay him:
(a) the salary arrears due between 1 November 1999 and 1 August 2000, plus statutory interest;
(b) the pension, disability, health and other insurance contributions due for the same period; and
16. On 19 June 2002 the judgment became final.
17. Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the second applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
18. On 10 January 2003 the court accepted the second applicant ’ s request and issued an enforcement order.
19. On 18 January 2006 the enforcement proceedings were stayed.
20. In July 2011, following their resumption, the second applicant was paid the full amounts awarded in his favour.
D. As regards the third applicant (Mr Milan Mitić, app. no. 14271/11 )
21. On 8 February 2001 and 7 February 2002, the latter following a brief reopening of the proceedings, the Majdanpek Municipal Court ruled in favour of the third applicant and ordered the debtor to pay him the salary arrears due between 1 April 1998 and 28 February 2000, plus statutory interest, as well as his legal costs.
22. By 12 April 2002 these judgments became final.
23. On unspecified dates, the third applicant filed separate requests for the enforcement of the above judgments before the Majdanpek Municipal Court.
24. On 19 June 2001 and 13 November 2003, respectively, the court accepted the third applicant ’ s requests and issued the enforcement orders.
25. On 20 February 2006 the enforcement proceedings were stayed.
26. In May 2011, following their resumption, the third applicant was paid the full amounts awarded in his favour.
E. As regards the fourth applicant (Mr Bora Lazarević, app. no. 17124/11 )
27. On 23 October 2001 the Majdanpek Municipal Court ruled in favour of the fourth applicant and ordered the debtor to pay him the salary arrears due between 1 December 1998 and 31 December 1999, plus statutory interest, as well as his legal costs.
28. By 22 November 2001 this judgment became final.
29. On 27 February 2002 the fourth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
30. On the same date the court accepted the fourth applicant ’ s request and issued the enforcement order.
31. On 20 February 2006 the enforcement proceedings were stayed.
32. In May 2011, following their resumption, the fourth applicant was paid the full amounts awarded in his favour.
F. As regards the fifth applicant (Mr Milorad Antonijević, app. no. 24452/11 )
33. On 11 September 2002 the Majdanpek Municipal Court ruled in favour of the fifth applicant and ordered the debtor to pay him the salary arrears due between 19 December 1997 and 28 March 2002, plus statutory interest, as well as his legal costs.
34. By 24 October 2002 this judgment became final.
35. On 30 October 2002 the fifth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
36. On 1 November 2002 the court accepted the fifth applicant ’ s request and issued the enforcement order.
37. In the course of 2003 and 2004, the debtor covered a part of the fifth applicant ’ s claims.
38. On 3 February 2006 the enforcement proceedings were stayed.
39. In June 2011, following their resumption, the fifth applicant was paid the full amounts awarded in his favour.
G. As regards the sixth applicant (Mr Goran Pobrić, app. no. 36515/11 )
40. On 7 December 2005 the Majdanpek Municipal Court ruled in favour of the sixth applicant and ordered the debtor to pay him compensation for the non-pecuniary damage suffered due to a labour-related injury, plus statutory interest, and his legal costs.
41. By 31 March 2006 this judgment became final.
42. On 1 June 2006 the sixth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.
43. On 14 June 2006 the court accepted the sixth applicant ’ s request and issued the enforcement order.
44. On 30 August 2006 the enforcement proceedings were stayed.
45. In May 2011, following their resumption, the sixth applicant was paid the full amounts awarded in his favour.
H. Other relevant facts as regards all applicants
46. None of the applicants ever filed an appeal with the Constitutional Court, seeking compensation for any non-pecuniary damages suffered due to the length of the enforcement proceedings in question.
47. As of April 2014, the debtor appeared to be a company predominantly comprised of State or socially owned capital and was still in the process of being restructured.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Republic of Serbia ( Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
48. Article 18 provides, inter alia, that “[h] uman ... rights guaranteed by the Constitution shall be implemented directly ”. Provisions regarding “ human ... rights shall be interpreted ... pursuant to valid international standards ... as well as the practice of international institutions which supervise their implementation.”
49. Article 32 § 1 provides, inter alia, for a right to a hearing within a reasonable time in the civil context.
50. 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.”
51. The Constitution entered into force on 8 November 2006.
B. The Constitutional Court Act ( Zakon o Ustavnom sudu; published in OG RS nos. 109/07, 99/11 and 18/13 )
52. The relevant provisions of this Act read as follows:
“A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an appellant ’ s right to a trial within a reasonable time.”
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”
C. The Constitutional Court ’ s case-law
53. The Constitutional Court has routinely awarded compensation for any non-pecuniary damage suffered to appellants whose right to a hearing within a reasonable time had been breached, including in cases where the impugned civil proceedings had been brought before the entry into force of the 2006 Constitution but continued thereafter (see paragraph 51 above). It also took into account the length of the impugned proceedings prior to as well as after this date (see, among many other decisions, Už. nos. 391/08, 143/09, 1387/09, 5466/10, 1063/12, 5660/12 of 9 April 2009, 17 March 2010, 17 February 2011, 20 December 2012, 30 May 2012 and 7 February 2013, respectively).
54. In a number of other cases, not involving complaints about length of proceedings, the Constitutional Court rejected as incompatible ratione temporis appeals regarding judgments/decision rendered before the entry into force of the 2006 Constitution (see, for example, Už. nos. 136/07, 127/08 and 190/07 of 15 May 2008, 12 June 2008 and 15 May 2008, respectively, as well as Už. nos. 157/07, 72/07 and 218/07 of 12 June 2008).
D. The Opinion adopted by the Supreme Court of Cassation on 24 February 2011 with its reasoning of 25 March 2011 ( Pravno shvatanje Vrhovnog kasacionog suda )
55. In its Opinion the Supreme Court of Cassation held that enforcement proceedings concerning the payment of all work-related pecuniary claims, which have been established by final court judgments, may not be stayed even where the debtor is being restructured as part of the privatisation process. In this respect it referred to, inter alia, Article 18 of the Constitution and the Court ’ s own earlier case-law on related issues (see paragraph 48 above; see also R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, 13 January 2009; and Vlahović v. Serbia, no. 42619/04, 16 December 2008 ).
56. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
57. The applicants complained, under Article 6 § 1 of the Convention, about the length of the enforcement proceedings in their cases, respectively.
58. Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
59. The Government submitted that the applicants had failed to make use of the constitutional avenue of redress. Their complaints should therefore be rejected for non-exhaustion of domestic remedies. The Government specifically referred to the Vinčić judgment, as well as the Marinković and the Milunović and Čekrlić decisions, in this context ( Vinčić and Others v. Serbia, no. 44698/06 et seq., 1 December 2009; Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011; and Marinković v. Serbia (dec.) no. 5353/11, 29 January 2013 ).
60. The Government further noted that although the issue of whether domestic remedies have been exhausted is normally to be determined in view of the date when the applications were lodged, exceptions could be justified in the specific circumstances of a given case ( see, for example, Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts); Brusco v. Italy, (dec.), no. 69789/01, ECHR 2001-IX; and Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002; see also Marinković, cited above, where, according to the Government, the Court held that, in the context of socially owned companies, a constitutional appeal should be considered as an effective domestic remedy as of 22 June 2012).
61. Finally, the Government recalled that the Constitutional Court has consistently been awarding compensation for non-pecuniary damage suffered due to a breach of the appellants ’ right to a hearing within a reasonable time, including in matters where the impugned civil proceedings had been brought before the entry into force of the new Constitution but continued thereafter. In such cases the Constitutional Court also took into account the length of proceedings prior to and after the said date (see paragraph 53 above).
62. The applicants maintained that a constitutional appeal could not be deemed effective within the meaning of Article 35 § 1 of the Convention in the very specific circumstances of their cases. In particular, the Constitutional Court was unwilling to deal with complaints concerning judgments and/or decisions rendered prior to 8 November 2006 as the date when the new Constitution had entered into force (see paragraph 54 above). Also, the first, second, third and sixth applicants submitted that even if a constitutional appeal could be considered as an effective remedy in respect of socially owned companies as of 22 June 2012, the applications giving rise to the present case were lodged before that date (see Marinković, cited above).
63. The Court recalls that, under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII).
64. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances. It is not necessary for the Convention right to be explicitly raised in domestic proceedings provided that the complaint is raised at least in substance (see Castells v. Spain, 23 April 1992, § 32, Series A no. 236; and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996-IV). The applicants must, however, comply with the applicable rules and procedures of domestic law, failing which their application is likely to fall foul of the condition laid down in Article 35 § 1 (see, for example, Cardot v. France, 19 March 1991, § 34, Series A no. 200; and Akdivar, cited above, § 66).
65. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). The Court has also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13; and Akdivar, cited above, § 69).
66. In terms of the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, § 27, Series A no. 198, and Dalia v. France, judgment of 19 February 1998, § 38, Reports 1998-I). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003; and Akdivar, cited above, § 68).
67. The issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann, cited above, § 47). This rule, however, is subject to exceptions which may be justified by the specific circumstances of each case (see, for example, Nogolica, cited above; and Pikić v. Croatia, no. 16552/02, §§ 30-33, 18 January 2005).
68. In Vinčić the Court held that “a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced [against Serbia] as of 7 August 2008” ( Vinčić and Others, cited above, § 51). This included complaints about length/non-enforcement in general, in which respect the Constitutional Court had routinely awarded compensation for any non-pecuniary damage suffered (see, among many other decisions, Už. nos. 391/08, 143/09, 1387/09, 5466/10, 1063/12, 5660/12 of 9 April 2009, 17 March 2010, 17 February 2011, 20 December 2012, 30 May 2012 and 7 February 2013, respectively; see also Vidaković v. Serbia (dec.), no. 16231/07, 24 May 2011).
69. In Milunović and Čekrlić, however, the Court found that a constitutional appeal “cannot be deemed effective” as regards the non-enforcement of judgments rendered in respect of socially /State owned companies [1] since in cases of this sort “comprehensive constitutional redress, in addition to a finding of a violation where warranted, would have to include compensation for both the pecuniary and the non-pecuniary damage sustained” ( Milunović and Čekrlić, cited above). The Court explained that on a number of occasions the Constitutional Court had only established a violation and awarded compensation for the non-pecuniary damage suffered, but had not ordered the State to pay the appellant the pecuniary damages, i.e. the specified sums awarded by the final judgments in question ( ibid.; the first among these decisions having been adopted by the Constitutional Court on 16 July 2009).
70. In Marinković, thereafter, the Court opined that a constitutional appeal still cannot be considered effective in cases involving the respondent State ’ s liability for the non-enforcement of judgments issued against socially /State owned companies “ undergoing restructuring”. However, as regards such companies undergoing insolvency proceedings and/or those which have ceased to exist, the Court concluded that “a constitutional appeal should, in principle, be considered as an effective domestic remedy” in respect of “all applications lodged from 22 June 2012 onwards” ( Marinković, cited above ). The Court explained that in the former context the Constitutional Court had still only been prepared to award the appellants compensation for the non-pecuniary damage sustained, but that in the latter context its case-law had evolved, meaning that appellants were being provided with compensation for both the pecuniary and the non-pecuniary damage suffered (ibid.).
71. Finally, in Ferizović, most recently, it was established that the Constitutional Court had ultimately “ fully harmonised” its approach towards the non-enforcement of judgments rendered against socially/State owned companies undergoing restructuring with the Court ’ s relevant case-law (see Ferizović v. Serbia (dec.), no. 65713/13, 26 November 2013; see also paragraph 69 above ). The constitutional appeal was therefore also to be deemed as an effective domestic remedy in respect of that last remaining category of cases starting with 4 October 201 3 (ibid.).
72. In view of the above and in the context of the present case, the Court notes that, on the one hand, since the final judgements in question had been enforced in the meantime, the applicants could have obtained compensation before the Constitutional Court for any non-pecuniary damage suffered (see paragraph 53 above). On the other hand, however, it would be disproportionate to require the applicants to turn to the Constitutional Court for redress more than three and five years, respectively, after they had already lodged their applications with the Court (see, mutatis mutandis, Cvetković v. Serbia, no. 17271/04, § 41, 10 June 2008; and Pikić, cited above). Indeed, should they now be rejected for non-exhaustion, the applicants could no longer file their constitutional appeals due to the deadline set out in Article 84 § 1 of the Constitutional Court Act, which would have expired thirty days following the enforcement of each judgment rendered in favour of the applicants respectively (see paragraph 52 above; compare and contrast to Nogolica and Brusco, both cited above, where there was no such obstacle).
73. There is also the issue of foreseeability. Specifically, as noted above, in Milunović and Čekrlić the Court stated that when it comes to socially/State owned companies “comprehensive constitutional redress, in addition to a finding of a violation where warranted, would have to include compensation for the pecuniary and the non-pecuniary damage sustained”. Of course, unlike in the present case, this referred to a situation where neither kind of compensation had yet been paid, but there is no obvious implication in this decision, or indeed in Marinković thereafter, to the effect that the appellants whose judgments had in the meantime been enforced should subsequently turn to the Constitutional Court for compensation of any non-pecuniary harm suffered ( Milunović and Čekrlić, and Marinković, all cited above). It was only in Ferizović, most recently, that the Court unequivocally held that the constitutional appeal should be considered as an effective remedy in respect of all socially/State owned companies as of 4 October 2013, including companies such as the debtor in the present case (i.e. one undergoing restructuring; see Ferizović, cited above).
74. In view of the foregoing, the Court rejects the Government ’ s objection as to the non-exhaustion of the domestic remedies. It is, however, understood that all cases such as the applicants ’ lodged with the Court as of 4 October 2013 would have to be rejected for non-exhaustion if no proper attempt to obtain constitutional redress had been made before that. The applicants ’ complaints are also not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. They must therefore be declared admissible.
75. The applicants reaffirmed their complaints, while the Government made no comment.
76. The Court recalls that the execution of a judgment given by a court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). A delay in the execution of a judgment may be justified in particular circumstances. It may not, however, be such as to impair the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V).
77. The Court has also already held that the respondent State is responsible for the debts of companies predominantly comprised of socially/State owned capital, which is why neither the lack of its own funds nor the indigence of the debtor can be cited as a valid excuse for any excessive delays in this particular enforcement context (see, among many other authorities, R. Kačapor and Others, cited above, § 114; and Crnišanin and Others, cited above, § 124).
78. In view of the above and turning to the present case, the Court notes that the Serbian authorities have advanced no reasons for their failure to take all necessary measures in order to enforce the judgments at issue between 3 March 2004 and 1 June 2006, those being the date of entry into force of the Convention in respect of Serbia and the date of the institution of the enforcement proceedings as regards the sixth applicant respectively, and May, June and July 2011, which was when the applicants were ultimately paid the full amounts awarded in their favour (see, mutatis mutandis, Vlahović, cited above, §§ 77 (i), 78 and 87, where a final judgment rendered against a socially owned company had been enforced following a three year delay). It is further understood that, as pointed out by the Supreme Court of Cassation, enforcement proceedings concerning the payment of all work-related pecuniary claims should not have been stayed even where the debtor was being restructured as part of the privatisation process (see paragraph 55 above ).
79. Accordingly, the applicants have suffered a violation of their rights guaranteed under Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
80. Article 41 of the Convention provides:
“If 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.”
81. The applicants claimed compensation in the amount of 5,000 euros (EUR) each in respect of the respondent State ’ s failure to enforce the judgments in question in a timely manner. The first, second, third and sixth applicants also claimed EUR 782 each for the costs and expenses incurred before the Court.
82. The Government contested these claims. They additionally maintained that, in any event, the fourth and fifth applicants ’ claims were belated.
83. Concerning the latter point, it is noted that the fourth and fifth applicants ’ written just satisfaction claims of 9 August 2013 were received by the Court on 14 August 2013, well before its deadline which had been set for 2 September 2013.
84. In view of its case-law (see Stošić v. Serbia, no. 64931/1 0, § § 66 and 67, 1 October 2013 ), the Court considers it reasonable and equitable to award EUR 2,000 to each applicant, which sum is to cover all non ‑ pecuniary damage as well as costs and expenses.
85. The 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;