MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1288/H46-28

7 June 2017

1288th meeting, 6-7 June 2017 (DH)

Human rights

 

H46-28 EVT Company group v. Serbia (Application No. 3102/05)

Supervision of the execution of the European Court’s judgments

Reference documents

DH-DD(2017)337, CM/Del/Dec(2016)1259/H46-31

 

Application

Case

Judgment of

Final on

Indicator for the classification

3102/05

EVT COMPANY GROUP (List of cases CM/Notes/1288/H46-28-app)

21/06/2007

21/09/2007

Complex problem

Case description

These cases concern violations of the applicants’ right to access to a court on account of non-enforcement of final court decisions concerning debts of socially-owned companies or municipal authorities as well as of final administrative decisions concerning pensions and demolition orders in respect of unauthorised construction (violations of Articles 6 § 1and 1 of Protocol No.1).

The case of DOO Brojler Donje Sinkovce also concerns the lack of an effective remedy for the applicant’s complaint in respect of the non-enforcement of final decision rendered against the debtor (violations of Article 13).

Status of execution

Individual measures:

The domestic court decisions were enforced in all but five cases (EVT Company (Application No. 3102/05), EVT Company (Application No. 8024/08), Raguž, Kostić and Šmigić). The relevant authorities were informed of their obligation to ensure the enforcement of the decisions in these cases without further delay.

In the two cases EVT Company and in Raguž the applicants did not take the steps needed to continue enforcement proceedings against the debtors. In the absence of their express requests for resumption of the enforcement proceedings, it was not possible to proceed with the enforcement of relevant domestic decisions pursuant to the relevant legislation. The applicants have the possibility to request continuation of the enforcement proceedings whenever they so wish. 

General measures:

a) Measures taken or envisaged with a view to finding a solution to the problem of non-enforcement of domestic court decisions

It is recalled at the outset that the majority of the cases examined by the Committee in this group concern enforcement of decisions against socially-owned companies (49 cases out of 57). In response to the Committee’s latest decision adopted at the June 2016 meeting, the authorities indicated the following.

Measures aimed at ensuring enforcement of decisions rendered against socially-owned companies: The problem under this head relates to the debt accumulated on account of non-payment of the salary arrears or commercial debts of socially-owned companies. The Serbian authorities took measures to ensure that the unenforced decisions ordering the payment of salary arrears are registered (as of 30 September 2015, 84,814 such decisions were registered; the total amount of the aggregate debt that should be paid amounts roughly to EUR 372 million) (for the details regarding the registration see the Notes prepared for the 1120th and1259th meetings). 

A payment scheme for the enforcement of decisions ordering the payment of salary arrears will be presented to the government by the end of 2017. As regards the commercial debts, the authorities indicated that a task force should be set up in 2017 to establish the total number of such decisions as well as an enforcement plan.

Measures aimed at ensuring enforcement of decisions rendered against municipal authorities:

The authorities are still working on establishing the total number of such decisions and the aggregate debt involved as well as introducing a scheme for their settlement.

Measures aimed at ensuring the effectiveness of enforcement of procedures in administrative matters: These measures are aimed at ensuring enforcement of demolition orders in respect of unauthorised constructions and decisions granting pensions.

1) Enforcement of demolition orders in respect of unauthorised constructions: According to a law adopted in 2015, the owners of such constructions are entitled to “legalise” them. Pursuant to the law, final demolition orders shall not be enforced until the “legalisation” procedure is completed. As of mid-March 2017, around 1.3 million of these constructions were registered and in 200,000 cases the legality of such constructions had been assessed. This procedure should be concluded within the next three years, following which the enforcement of demolition orders will be more efficient. The authorities are making efforts to enforce demolition orders in which the assessments have already been carried out. For instance, in 2016, 282 demolition orders were enforced. It is envisaged that 565 demolition orders will be enforced in 2017.

2) Enforcement of decisions granting pensions: The authorities are reflecting on the measures to be taken.

b) Measures taken with a view to introducing an effective remedy

Serbian law provides for a two-tier remedy against non-enforcement of domestic court decisions. In 2015 the Law on Protection of the Right to Trial within a Reasonable Time was adopted introduced a combination of acceleratory and compensatory remedies. The law provides for the possibility to apply to presidents of enforcement courts and to complain of excessive length of enforcement proceedings. Presidents of enforcement courts can order the acceleration of the impugned proceedings and award compensation for the damage sustained. The European Court has not yet ruled on the effectiveness of this remedy.

Regarding the effectiveness of the 2015 remedy, the authorities indicated that (i) enforcement proceedings with respect to decisions rendered against socially-owned companies can be accelerated and terminated on the basis of the application of the new remedy; (ii) in case of a failure to enforce a decision despite the order of the president of a court to accelerate enforcement proceedings, an individual is entitled to file a complaint with the Constitutional Court; and (iii) the new remedy is operating without major problems: courts have received so far 30,038 complaints alleging excessive length of proceedings and made final decisions on 25,439 complaints.

In addition to the 2015 remedy, it is also possible to lodge a complaint before the Constitutional Court. The constitutional complaint is considered to be an effective remedy by the European Court. It can be filed after the remedies introduced in 2015 are exhausted. It is recalled that the European Court found in Vinčić (Application No. 44698/06, judgment of 1 December 2009, final on 2 March 2010) that the constitutional complaint constituted an effective remedy in general as of 7 August 2008.

As regards its effectiveness regarding socially owned companies, the European Court in two cases (Marinković (Application No. 5353/11, decision of 29 January 2013) and Ferizović (Application No. 65713/13, decision of 16 November 2013)) found that the Constitutional Court had fully harmonised its approach towards the non-enforcement of judgments against socially -owned companies with that of the European Court and considered that constitutional complaint had been an effective remedy in this respect since 4 October 2013 (§§ 24-25 in Ferizović).

Analysis by the Secretariat

Individual measures:

It is noted that the authorities have taken steps to ensure the swift enforcement of the decisions in these cases. As regards the cases of EVT Company (Application Nos. 3102/05 and 8024/08) and Raguž, given that the applicants have not taken the steps necessary to continue enforcement proceedings against private companies and that they are entitled so to do if they wish, no further individual measures appear necessary. It is recalled that the Committee has already closed examination of general measures in these cases during its June 2016 meeting (see Final Resolution CM/ResDH(2016)152) and it might now wish also to close its examination as regards individual measures. As regards the cases of Kostić and Šmigić, the authorities are strongly urged to take all possible steps to ensure the enforcement of the relevant domestic decisions.

General measures:

Issues closed by the Committee and scope of the problem:, it is recalled that in June 2016 the Committee decided partially to close this group: it closed the cases concerning the effectiveness of the enforcement of civil, commercial and family-related matters, as well as eviction orders within the context of the special “protected tenancy regime”. As the remaining cases mainly concern non-enforcement of domestic decisions against socially-owned companies, it should be highlighted that it is no longer possible to set up socially-owned companies in Serbia and that the existing socially-owned companies are gradually being privatised. The problem of non-enforcement of court decisions concerning these companies will therefore not recur in the future.

As regards the effectiveness of the system of legal remedies: The statistical information provided by the authorities indicates that the additional remedy introduced in 2015 is working well. Moreover, if in any case the 2015 remedy proves ineffective, it is open to the applicant to file a constitutional complaint. This is considered by the European Court to be an effective remedy: following the Ferizović decision, it rejected 1,709 applications on the ground of non-exhaustion, holding that the applicants should have first exhausted the constitutional remedy.

Cases concerning socially-owned companies pending before the Court: It is recalled that the authorities have adopted a policy of concluding friendly settlements with a view to decreasing the number of this kind of applications pending before the European Court. As a result, since 2013, 1,986 friendly settlements have been reached and the Court decided to strike out 70 cases with unilateral declarations. In light of this, as well as the fact that the constitutional complaint was strengthened as an effective remedy, the influx of new similar applications before the European Court has effectively been prevented. This is particularly encouraging bearing in mind the Committee’s decision of December 2012 strongly inviting the authorities to intensify their efforts with a view to preventing the influx of new similar applications before the European Court. In view of their policy, the authorities are expected to conclude friendly settlements in the 28 similar cases that are still pending before the European Court.

Conclusion: In view of the European Court’s finding that the constitutional complaint is an effective remedy, as well as the explanations given by the authorities in response to the Committee’s last decision and their policy of concluding friendly settlements to decrease the number of similar applications before the European Court, the Committee might wish to note with satisfaction that the authorities’ efforts have resulted in a significantly reduced number of similar applications on the Court’s docket. It is however noted that the substantive measures aimed at addressing the roots of the outstanding problem of non-enforcement of final decisions rendered against socially-owned companies and municipal authorities remain to be taken. Given that these issues have been pending before the Committee for nearly ten years, the authorities might be strongly invited to take these measures aimed at ensuring that these decisions are rapidly registered and enforced without further delay.

Financing assured: YES