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SECOND
SECTION
CASE OF RISTIĆ v. SERBIA
(Application
no. 32181/08)
JUDGMENT
STRASBOURG
18 January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ristić v.
Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria,
Kristina Pardalos,
Guido Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32181/08) 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”) on behalf of the two
Serbian nationals, Ms Jovana Ristić and Mr
Nikola Ristić (“the applicants”), by their mother,
on 26 June 2008.
- The
applicants were represented by Mr M. Baratović, a lawyer
practising in Belgrade. The Serbian Government (“the
Government”) were represented by their Agent, Mr
S. Carić.
- The
President of the Chamber gave priority to this application in
accordance with Rule 41 of the Rules of Court.
- The
applicants complained about the excessive
length of the criminal proceedings,
relating to their father's failure to pay the child maintenance
awarded.
- On
24 March 2009 the President of the Second Section decided to give
notice of the application to the Government. Applying Article 29 §
3 of the Convention, it was also decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1992 and 1996 respectively and live in
Belgrade.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
28 December 2000 the Third Municipal Court (Treći
opštinski sud)
in Belgrade dissolved the marriage between the applicants' parents
and ordered their father (hereinafter “the defendant”) to
pay each of them 25% of his monthly income in
child maintenance.
- On
27 June 2001 this judgment became final.
- On
2 April 2003 the applicants' mother filed a criminal complaint
against the defendant, alleging his failure to pay the child
maintenance awarded.
- On
13 May 2003 the Third Municipal Public
Prosecutor's Office requested the opening of the investigation.
12. On
29 May 2003, in the course of the preliminary proceedings
before the Third Municipal Court, the applicants' mother, acting on
behalf of the applicants, sought payment of the child maintenance
accrued on the bases of the judgment adopted on 28 December 2000
(i.e. submitted a “civil-party complaint”; “podnela
predlog za ostvarivanje imovinsko-pravnog zahteva”).
- On
14 July 2003 the Third Municipal Public
Prosecutor's Office formally indicted the defendant
in this respect.
- The
first hearing scheduled for 9 December 2003 was adjourned.
- Between
March 2004 and April 2005 two hearings were held whilst another three
hearings were adjourned on various procedural grounds.
- On
25 April 2005 the Third Municipal Court decided to consider the
applicants' civil complaint on the merits and requested an expert
opinion in respect of the amount of accrued maintenance between
January 2001 and June 2005.
-
The expert produced his report on 7 July 2005.
- Between
August 2005 and October 2006, four hearings were adjourned either
because of the failure of the defendant's
lawyer to appear before the court or the court's failure to summon
him properly.
-
In view of a possibility of settling the problem with the defendant,
the applicants' legal representative requested the court to grant a
short adjournment of the hearing of 22 November 2006. The court
rescheduled the hearing for 8 December 2006.
-
Between December 2006 and October 2007, another two hearings were
held whilst three hearings were adjourned on procedural grounds, one
of them because of the presiding judge's “other
commitments” (zbog
sprečenosti).
21.
In a letter of 11 September 2007, addressed to the President of the
Third Municipal Court, the applicants alleged that the presiding
judge had herself indicated that she
“did not know what to do with the case” and would gladly
be replaced by another judge.
- On
22 November 2007 the Third Municipal Court requested an updated
version of the expert's opinion.
23. The
expert submitted his report on 8 January 2008.
- The
court served this report on the parties at the hearing of 8 February
2008, which was adjourned to allow them to submit their written
comments.
25. The
hearing scheduled for 6 March 2008 was adjourned because the
prosecutor and the applicants' representative had failed to appear,
and re-scheduled for 1 April 2008.
- Given
the defendant's failure to appear in court, the court adjourned the
hearing of 1 April 2008 and scheduled the next hearing for 9 July
2008. This hearing would appear to have been also adjourned.
- On
8 October 2008 the Third Municipal Court
found the defendant guilty of failing to pay
child maintenance and sentenced him to three months' in
prison, suspended for one year. The court further advised the
applicants, under Article 206 of the Criminal Proceedings Act (see
paragraph 35 below), to pursue the compensation claims which they had
made in the course of the criminal proceedings by means of a separate
civil action before the civil courts. It was noted that the data
collected in the course of the criminal proceedings were not
sufficient to determine the matter in the criminal context.
- It
would appear that this judgment was not served on the applicants'
representative.
- On
12 February 2009 the District Court (OkruZni sud) in Belgrade
quashed the Third Municipal Court's
judgment and remitted the case for re- consideration.
- The
Third Municipal Court subsequently
adjourned the hearing scheduled for 22 June 2009 in view of the
defendant's failure to appear in court.
- On
16 July 2009 the Third Municipal Court
discontinued the proceedings because the prosecution had become
time-barred. It further advised the applicants that they could pursue
their claim for damages in a separate civil suit. No appeal having
been submitted, this decision became final on 9 October 2009.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the Court's judgment of (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, §§ 24-35,
1 December 2009), as well as in the Code of Criminal Procedure
(Zakonik o krivičnom postupku, published in the Official
Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02,
as well as the Official Gazette of the Republic of Serbia – OG
RS – nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and
72/09).
- Under
Serbian law a victim of a criminal offence may seek financial
reparation for the damage sustained from the perpetrator either by
filing a civil party (pecuniary) complaint in criminal proceedings
pursuant to the Code of Criminal Procedure, or by bringing a separate
civil claim.
- According
to Article 201 of the Code of Criminal Procedure, a civil party claim
(imovinsko-pravni zahtev) arising out of the commission of a
criminal offence shall be decided, following the request of an
authorised claimant, in the course of criminal proceedings unless it
significantly delays those proceedings. Under Article 203, this claim
may, inter alia, be submitted to the competent criminal court
of first instance up until the conclusion of the main hearing.
-
The Act further provides under Article 206 that should the court find
the accused guilty, the victim may be awarded full or partial
compensation. In the latter case, the court may advise him or her to
seek the remainder of the compensation sought in civil proceedings.
The same applies if evidence taken in criminal proceedings is
insufficient to have damages awarded. In case of an acquittal or
dismissal of the prosecution, if the proceedings are discontinued or
the indictment is rejected, the court shall advise the victim to
pursue his or her compensation claim in a separate civil suit.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Complaints
were made on behalf of the applicants that the proceedings at issue
had not been concluded within a reasonable time, as required by
Article 6 § 1 of the Convention, the relevant part of which
reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
Admissibility
1. The parties' submissions
- The
Government maintained that the applicants had not exhausted all
effective domestic remedies within the meaning of Article 35 § 1
of the Convention. In particular, they had failed to lodge a
constitutional appeal with the Constitutional Court of the Republic
of Serbia (hereinafter “the Constitutional Court”), as
well as to seek civil enforcement of the judgment of 27
June 2001.
- As
regards the constitutional appeal, the applicants stated that, at the
material time, they had not considered the constitutional complaint a
domestic remedy to be exhausted before submitting their case to the
Court. The applicants further explained that the defendant
had allegedly transferred all his property to his brother and current
partner, meaning that no civil enforcement would have been possible.
Lastly, they believed that the criminal proceedings would expedite
the payment of the maintenance awarded, particularly following the
criminal court's initial decision to consider their claims on the
merits.
2. The Court's assessment
- The
Court notes that the present application was introduced on 26 June
2008. The Court further recalls that it has already 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 as of 7
August 2008 (see Vinčić and Others v. Serbia, cited
above, § 51). The Court does not see any reason to hold
otherwise in the present case, which is why the Government's
objection in this respect must be dismissed.
- As
regards the Government's second objection, the Court notes that under
the applicable domestic legislation a victim of a criminal offence
may pursue a civil action for the damage sustained as a consequence
of a criminal offence either by filing a civil-party complaint before
the criminal courts simultaneously with the prosecution or by
initiating a separate civil suit for damages (see paragraph 33). The
Court observes that the applicants had made use of the criminal
avenue (see paragraph 12). Bearing in mind that the criminal court
had accepted to examine their civil claims, the applicants therefore
had a legitimate expectation that the said court would proceed to
rule on their merits. In any event, the applicants have not
complained before this Court about the non-enforcement of the
judgment of 27 June 2001, but only in
respect of the protracted length of the criminal proceedings wherein
they appeared as victims with a civil claim. Thus, for the purposes
of this case, the Government's objection is clearly irrelevant and
must, as such, be rejected.
- In
view of the above, the Court concludes that the applicants'
complaints cannot be declared inadmissible for non-exhaustion of
domestic remedies under Article 35 § 1 of the Convention. The
Court also considers that the complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and finds no other ground to declare them inadmissible.
The complaints must therefore be declared admissible.
Merits
1. The parties' submissions
-
The Government contested that the overall length of the proceedings
in question had been excessive. In particular,
they maintained that: (a) though it may be considered that the
impugned criminal proceedings had started on 13 May 2003, the period
which falls within the Court's competence ratione temporis
began on 3 March 2004, the date when the Convention entered into
force in respect of Serbia; (b) the case was relatively complex
because of the court's responsibility to establish both the elements
of a crime and the defendant's debt; (c)
while several adjournments of the hearings
could be imputable to the domestic authorities, the
conduct of the applicants' legal representative had also
contributed to the length; (d) the presiding judge had
adjourned several hearings in order to ensure the defendant's
right to a fair trial.
- The
applicants contested these arguments. They maintained that the
proceedings in question were factually and legally simple. The
applicants further submitted that they had not contributed to the
delay at issue, but that the judicial authorities had sent a very
disturbing message to irresponsible fathers to the effect that they
could avoid paying child maintenance with impunity.
2. The Court's assessment
- The
Court notes at the outset that the applicants were not accused in the
criminal proceedings complained of, but participated as the injured
parties. In this connection, it notes that Article 6 does not apply
to criminal proceedings in respect of the right to have third parties
prosecuted or sentenced for a criminal offence. It may, however,
apply under its “civil head” to criminal proceedings
involving a determination of pecuniary claims asserted by the injured
parties (so-called “civil-party complaints”) and, even in
the absence of such claims, to those criminal proceedings the outcome
of which is decisive for the “civil right” in question
(see Perez v. France [GC], no. 47287/99, §§
57-72, ECHR 2004 I). Article 6 is applicable under its civil
limb to the criminal proceedings from
the moment when the victims join as civil parties, namely as of when
they bring their action for the damage suffered as a result of a
criminal offence (Atanasova v. Bulgaria, no.
72001/01, 2 October 2008, § 51; and Boris Stojanovski v. “the
former Yugoslav Republic of Macedonia”, no. 41916/04, 6
May 2010, § 40), even
if this happens during the preliminary investigation stage of the
case (see Tomasi v. France, 27 August 1992, Series A no.
241 A; and Perez v. France, cited above, §
40).
- The
Court further recalls that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the
case and with reference to the following criteria: the complexity of
the case, the conduct of the applicant and the relevant authorities
and what was at stake for the applicant in the dispute (see, among
many other authorities, Cocchiarella v. Italy [GC], no.
64886/01, ECHR 2006 V; Frydlender
v. France [GC], no.
30979/96, CEDH 2000-VII; Zimmerman
and Steiner v. Switzerland, 13 July 1983, Series
A no. 66, and Jablonski v. Poland, no. 33492/96, 21
December 2000).
- Turning
to the present case, the Court firstly notes that Article 6 is
applicable as of 29 May 2003, which was when the applicants' mother,
acting on behalf of the applicants, filed the civil-party complaints
in the course of the criminal investigation and they thus acquired
the status of civil parties to the criminal trial. The complaints
were obviously designed to secure a conviction which would have
enabled the applicants to exercise their civil rights, i.e. the right
to child maintenance as ordered by the judgment of 28
December 2000.
- The
Court secondly notes that, for the purposes of this case, the
impugned proceedings lasted between 29 May 2003 and
9 October 2009, when the court's decision of 16 July 2009 became
final. On 3 March 2004, the date when the Convention came into force
in respect of Serbia, they had thus been pending for nine months,
while following this date, they came within the Court's competence
ratione temporis for a period of five years and seven months
before two levels of jurisdiction (see, among other authorities,
Styranowski v. Poland, judgment of 30 October 1998,
Reports of Judgments and Decisions 1998 VIII, § 46).
- Thirdly, the proceedings at issue were not
particularly complex, they involved issues of great importance to the
applicants, and furthermore, the Convention as well as the relevant
domestic law require exceptional diligence in all child-related
matters.
- Fourthly,
the applicants' conduct did not contribute to the procedural delay
complained of, except, perhaps, in respect of their request for the
adjournment of the hearing scheduled for 22 November 2006 for sixteen
days in order to try to achieve a settlement, and only partially in
respect of the hearing fixed for 6 March 2008, as their
representative failed to appear, together with the prosecutor (see
paragraphs 19 and 25 above). Furthermore, the second expert financial
report was needed to calculate the maintenance, as well as the
statutory interest, accrued in the course of the proceedings
themselves.
- Fifthly,
while the domestic courts need to protect the due process in respect
of the defendant, they should also afford adequate protection to the
victims, particularly where they happen to be young and vulnerable.
- Sixthly,
the Court observes that the prosecution of the defendant
became time-barred and that as a result it became impossible for the
applicants to obtain a decision on their claim in the criminal
proceedings.
- In
view of the above, as well as the fact that there were several
significant periods of judicial inactivity and a number of
unwarranted adjournments, the Court finds that the protracted
character of the proceedings were mainly imputable to the respondent
State's judicial authorities.
- The
Court is therefore of the opinion that the length of the proceedings
complained of has failed to satisfy the reasonable time requirement.
There has, accordingly, been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants claimed EUR 25,500 in respect of the damage suffered as a
result of a violation of their rights guaranteed under Article 6, as
well as the payment of the maintenance awarded domestically.
- The
Government contested their claims.
- The
Court considers that the applicants' claims, in so far as they relate
to the payment of the maintenance, must be rejected, as the Court
does not discern any causal link between the violation found and the
damage alleged.
- The
Court, however, takes the view that the applicants have suffered some
non-pecuniary damage as a result of the violation found which cannot
be made good by the Court's mere finding of a violation. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicants EUR 2,600 under this
head.
B. Costs and expenses
- The
applicants claimed EUR 500 for the costs and expenses incurred before
this Court. They further claimed the costs and expenses incurred
before the domestic courts without specifying the exact amount.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In
the present case, regard being had to the documents in its possession
and the above criteria, the Court
rejects the applicants' claim for costs and expenses before the
domestic courts as they were not incurred in order to remedy the
violation in issue, but considers it
reasonable to award them EUR 500 for the proceedings before it.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
(i)
EUR 2,600 (two thousand six hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable,
(ii)
EUR 500 (five hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens Registrar President
