CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 15 octobre 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s94A565AB { margin-left:37.2pt; padding-left:13pt; font-family:Arial } .s7ED160F0 { text-decoration:none } .sA527F4CF { font-size:8pt; vertical-align:super; color:#0069d6 } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s393990F0 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; widows:0; orphans:0 } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sAB55E796 { width:26.35pt; display:inline-block } .s1191F117 { width:132.6pt; display:inline-block } .sB622B88D { width:38.36pt; display:inline-block } .s1AAADF29 { width:107.27pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   SECOND SECTION DECISION Applications nos. 750/09 and 59631/11 Đurica JOSIMOV against Serbia and Nada JOSIMOV against Serbia The European Court of Human Rights (Second Section), sitting on 15   October 2013 as a Committee composed of:   Paulo Pinto de Albuquerque, President,   Dragoljub Popović,   Helen Keller, judges, and, Seçkin Erel, Acting Deputy Section Registrar, Having regard to the above applications lodged on 18 December 2008, Having deliberated, decides as follows: THE FACTS 1.     The applicants, Mr Đurica Josimov (“the first applicant”) and Ms   Nada Josimov (“the second applicant”) are Serbian nationals, who were both born in 1961. The applicants are husband and wife and live in Belgrade. They were represented before the Court by Mr S. Gajić, a lawyer practising in Belgrade. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Introduction 3.     On 1 January 1995 and 1 December 1999, the first and the second applicant, respectively were “placed” by their employer – Industrija Kotrljajućih Ležaja A.D from Belgrade (hereinafter: “the debtor”) – on a “compulsory” paid leave, “until such time” when this company business could be improved sufficiently. 4.     Whilst on leave, in accordance with the relevant domestic legislation, the applicants were entitled to a significantly reduced monthly income, as well as the payment, by their employer, of their pension, disability and other social security contributions. 5.     Since the company failed to fulfil these obligations, on 16   March   2004 the applicants brought civil claims before the First Municipal Court in Belgrade (“ Prvi o pštinski sud u Beogradu ”) seeking salary arrears and other work related benefits. 2.     Civil and enforcement proceedings 6.     On 10 October 2006 the First Municipal Court in Belgrade partially accepted the applicants’ claims and ordered the debtor to pay: the first applicant certain sums in respect of the monthly paid leave benefits, due from 1 February 2001 to 31 December 2004 (186,495 Serbian dinars in all) [1] , plus statutory interest; the second applicant certain sums in respect of the monthly paid leave benefits, due from 1 February 2001 to 31 December 2004 (171,549 Serbian dinars in all) [2] , plus statutory interest; the second applicant certain sums in respect of vacation benefits for years 2000, 2001 and 2002 (17,200 Serbian dinars in all) [3] , plus statutory interest; the applicants 82,090 Serbian dinars [4] for their legal costs. 7.     This judgment became final on 10 January 2007. 8.     On 25 April 2007 the applicants filed a request for the enforcement of the above judgment before the Fourth Municipal Court in Belgrade. 9.     On 24 December 2007 the Fourth Municipal Court in Belgrade accepted the applicants’ request and issued an enforcement order. 3.     Insolvency proceedings 10.     On 22 October 2010 the Commercial Court in Belgrade opened insolvency proceedings in respect of the debtor, which led to the ongoing enforcement proceedings before the Fourth Municipal Court being stayed. 11.     The first and second applicant registered their claims for, inter alia , the sums specified in the judgment referred to above on 19 November 2010 and 29 November 2010 respectively. 12.     On 4 February 2011, in two separate decisions, the applicants’ claims were partially recognised by the Commercial Court in Belgrade as follows: 1,155,715.44 Serbian dinars [5] in respect of the first applicant; and 196,440 Serbian dinars [6] and 1,670,690 Serbian dinars [7] in respect of the second applicant. 13.     The Commercial Court rejected the applicants’ claims concerning a calculation of statutory interest and in this respect, instructed the applicants to initiate separate civil proceedings. 14.     As it can be concluded from materials in the Court’s possession the applicants did not initiate a separate civil suit. 4.     Legal status of the debtor 15.     The debtor in the present case had been a socially-owned company. In 1999 the debtor was transformed into joint stock company. After this transformation the debtor consisted of 30.62 % of socially-owned capital. In 2005 the State sold all of its shares at a stock market. COMPLAINTS 16.     The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the respondent State’s failure to enforce the final court judgment rendered in their favour on 10   October   2006. THE LAW A.     Joinder of the applications 17.     The Court considers that, in accordance, with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given their common factual and legal background. B.     The applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 18.     As noted above the applicants company complained about the non ‑ enforcement of the final judgment rendered in their favour. In so doing, it relied on Article 6 § 1 of the Convention and Article 1 of Protocol   No.   1.   The relevant provisions of these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations .., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his [or her] possessions. No one shall be deprived of his [or her] possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 19.     The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities , Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV). 20.     The Court has consistently held that a constitutional appeal should, in principle, be considered as an effective domestic remedy in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia , nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009). 21.     There is no reason to depart from that jurisprudence in the present case that concerns the non-enforcement of a final court decision rendered against a private company (contrast Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011 concerning the non-enforcement of final court decisions rendered against socially/State-owned companies). 22.     It follows that the applications must be rejected under Article 35 §§   1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible.   Seçkin Erel   Paulo Pinto de Albuquerque   Acting Deputy Registrar   President [1] Around 2,292 euros [2] Around 2,109 euros [3] Around 211 euros [4] Around 1,009 euros [5] Around 11,112 euros [6] Around 1,888 euros [7] Around 16,064 euros