CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 7 mars 2014

.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 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .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 } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s260B30F2 { width:16.02pt; display:inline-block } .sF03B00FD { width:194.96pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block }   THIRD SECTION DECISION Application no. 40348/08 Rade JOVANOVIĆ against Serbia The European Court of Human Rights (Second Section), sitting on 7   March   2014 as a Committee composed of:   Ján Šikuta, President,   Dragoljub Popović,   Iulia Antoanella Motoc, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above application lodged on 5 August 2008, Having regard to the parties’ observations, Having deliberated, decides as follows: THE FACTS The applicant, Mr Rade Jovanović, is a Serbian national, who was born in 1933 and lives in Zrenjanin. He was represented before the Court by Mr   D. Radin, a lawyer practising in Zrenjanin. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who is a retired economist, acted as an expert witness in civil proceedings initiated by G.Ć. against a company from Jaše Tomić. By   the 27 December 2000 decision of the Zrenjanin Municipal Court, he was awarded 300 Serbian Dinars (RSD) for his expert testimony which was equivalent to approximately 5 Euros (EUR) on the day of the adoption of the decision. The G.Ć. was ordered to pay this sum to the applicant, since he was a losing party in the proceedings. More than a year after the award was made, the applicant initiated the enforcement proceedings on 5 February 2002 before the Zrenjanin Municipal Court due to G.Ć. failure to voluntarily pay the awarded sum. On the same day, the Zrenjanin Municipal Court delivered the enforcement order by which G.Ć. was ordered to pay to the applicant RSD 430 in total (the principal debt plus statutory default interest), which at the time of the delivery of the decision was equivalent to approximately EUR 7. The court also ordered G.Ć. to pay the costs of the enforcement proceedings of RSD   930, at the time equivalent to approximately EUR 15. The total amount of the claim was, therefore, approximately EUR 22. G.Ć. voluntarily paid the principal debt, interest and costs in two payments made on 25 February and 12 March 2002. The applicant’s legal representative informed the court about these payments by written submissions of 26 February and 13 March 2002. Although the debtor, by making these payments, fulfilled his obligations from the enforcement order on 12 March 2002, the applicant through his legal representative informed the court that “if the debtor wishe[d] to be considered to have fulfilled his obligations [...], he need[ed] to pay the costs of the submission [of] 26   February 2002 and the costs of this submission [of] 13 March 2002, as well as the costs of a [future] submission...” The court made no decision on this until 29 December 2006. Despite the fact that the principal debt, interest and costs of the proceedings had already been paid and that no court decision on the claim of additional costs made by the applicant had been given, the court continued the enforcement proceedings by performing an inventory of G.Ć.’s property on 7 June 2002. The court found no suitable belongings for enforcement at the inventory. It proposed a friendly settlement between the parties. On 19 February 2003, the court asked for an update on any friendly settlement from the parties. On 13 March 2003 the applicant’s legal representative informed the court that no settlement was reached and proposed the continuation of the enforcement proceedings. On 29 December 2006 the court partially awarded the costs of the enforcement proceedings as claimed by the applicant in his submission of 13 March 2003 and awarded him a lump-sum of RSD 5.400 which was at the time equivalent to approximately EUR 68. On 16 August 2007 the court organised another inventory of the debtor’s property and listed his TV set, the value of which was estimated at RSD   5.000 (approximately EUR 65). Following two unsuccessful attempts to sell the TV set on a public auctions, the TV set was awarded to the applicant who was considered to have received one half of the overdue sum. The applicant requested additional inventories which were granted by the court. He, however, cancelled the inventory scheduled for 30 April 2009 and failed to attend the inventory scheduled for 14 July 2009. The court also established that the debtor’s other belongings were old and of no value. Despite this, the court continued to schedule inventories of the debtor’s property at the request of the applicant. Inventories were supposed to be held on 2 September 2010, 30 December 2010, which the applicant failed to attend, and 18 August 2011, which the applicant attended. On 17 October 2011, by the decision of the court, the applicant was awarded RSD 17.500 for the costs of the enforcement proceedings which at the time was equivalent to approximately EUR 175. On 19 July 2012, the court held another inventory of G.Ć.’s property and found no property of value. The applicant and his representative again failed to attend the inventory. The enforcement proceedings are still pending. COMPLAINTS The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the enforcement proceedings before the Zrenjanin Municipal Court was excessive and that Serbian law did not provide for an effective legal remedy in this respect. THE LAW The applicant’s first complaint relates to the length of the enforcement proceedings, which began on 5 February 2002 and are still pending. They have therefore already lasted nearly 10 years since the entry into force of the Convention in respect of Serbia on 3 March 2004. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, as 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...” He further alleged a violation of Article 13, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government raised various objections as to the admissibility of the application, particularly pointing out the abuse of the right of application. The applicant made no comments on this objection in his reply. The Court has consistently held that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see: Miroļubovs and Others v. Latvia , no.   798/05, §§ 62 and 65, 15 September 2009). In particular, the Court recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006 and Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29   April   2010; and Khvichia v. Georgia (dec.), no. 26446/06, 23   June   2009). The Court also recalls that it declared as abusive those applications which manifestly lacked any real purpose or which concerned a petty sum of money ( Bock v. Germany (dec.), no. 22051/07, 19   January   2010). Turning to the present case, the Court notes at the outset that the applicant received the payment of the entire sum of the principle debt, interest and initial costs of enforcement proceedings within a month from the delivery of the enforcement order. Despite the fact that the entire sum awarded by the enforcement order of 5 February 2002 was paid, and without any additional decision by which the applicant’s claims of new costs of proceedings was recognised, the domestic court continued the enforcement proceedings by organising inventories of G.Ć.’s property. The subsequent enforcement proceedings concerned only the payment of additional costs of those proceedings arising from the applicant’s unnecessary letters to the domestic court and his requests for inventories of G.Ć.’s property which he then failed to attend. The Court further notes the negligible amount of the principal debt (approximately EUR 5). Lastly, the Court also notes that the applicant informed the Court in his application of 5 August 2008 that G.Ć. had paid “a portion of the debt” recognised in the enforcement order of 5 February 2002. It is, however, clear from the Government’s observations that the full amount of the principal debt with interest and the initial costs of enforcement proceedings had been paid to him within a month after the initiation of the enforcement proceedings. The applicant failed to clearly inform the Court about this fact. At a time when the Court is called upon to deal with many cases raising particularly serious human rights issues, it will not allow to be used as a tool for furtherance of obviously malicious litigations such as this one. Taking into consideration the pettiness of the claim, conduct of the applicant in the domestic proceedings and his omission to inform the Court of a fact of crucial importance for the determination of his case, the application must be considered as abusive. Under such circumstances, it is appropriate to reject the application at issue in the present case, in its entirety, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Marialena Tsirli   Ján Šikuta   Deputy Registrar   President