CASE OF ILIC v. SERBIA
Violation of P1-1;Violation of Art. 6-1 (length of civil proceedings);Violation of Art. 13+6-1;No separate issue under Art. 6-1 (non-enforcement) or under 13+P1-1;Remainder inadmissible (impartiality);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
4. The applicant was born in 1935 and lives in Belgrade, Serbia. 5. On 23 March 1960 an apartment building owned by the applicant's father was nationalised by the Yugoslav communist authorities. 6. On 1 December 1960 the Palilula municipal authorities declared that one specific flat in the apartment building was to remain the property of the applicant's father. 7. Following his father's death, the applicant inherited the legal title to this flat. He could not, however, effectively enjoy it because the flat was subjected to a special “protected tenancy regime” and, as such, physically occupied by other persons whose rent was controlled by the public authorities. 8. In 1992 a new Housing Act made it possible, under certain conditions, for the owners of such flats to regain effective possession (see paragraphs 39-41 below). 9. On 19 January 1993 the Housing Department of the Palilula Municipality (Odeljenje za komunalno-stambene poslove opštine Palilula) accepted the applicant's eviction request and ordered the same Municipality to provide the “protected tenant” in question with adequate alternative accommodation by 31 December 1995, at the latest. 10. On 17 August 1994 the Housing Department of the Palilula Municipality adopted another decision to the same effect (360-440/93-II-01). In so doing, it confirmed its ruling of 19 January 1993 and explicitly ordered the protected tenant's eviction by 31 December 1995. 11. On 1 December 1994 the Housing Department of the City of Belgrade (Sekretarijat za komunalne i stambene poslove grada Beograda) rejected the appeal filed by the Municipal Attorney-General's Office (Javno pravobranilaštvo opštine Palilula) and the decision of 17 August 1994 thereby became final. 12. On 4 August 2006 the Housing Department of the Municipality of Palilula offered the original protected tenant's legal heir, Ms B.K., specific alternative accommodation but then went on to note that a “priority list” would nevertheless have to be considered. 13. Ms B.K. stated that she had continued living in the flat, following the former protected tenant's death, together with her son, her daughter-in-law and their minor child. She added that the flat offered was some 20 square meters smaller than the one she currently lived in, and stated that it was not located in the city centre. 14. On 10 August 2006 the Housing Department of the Municipality of Palilula reaffirmed its offer but Mr S.K., Ms B.K.'s son, stated that the flat in question was inadequate in terms of its overall size as well as the number of rooms available. He added, however, that he and his family would provide the municipality with their final answer within ten to fifteen days. 15. In 1996 the applicant filed a civil claim against the Municipality of Palilula with the First Municipal Court in Belgrade (Prvi opštinski sud u Beogradu). He sought compensation for the pecuniary damage sustained due to his continuing inability to use/lease the flat in question. 16. On 2 September 1996 the First Municipal Court in Belgrade (“the Municipal Court”) ruled partly in favour of the applicant. 17. On 30 June 1997 the District Court in Belgrade (Okružni sud u Beogradu) quashed this decision on appeal and ordered a retrial. 18. On 26 June 2001 the Municipal Court ruled against the applicant. 19. On 27 December 2001 this judgment was upheld by the District Court in Belgrade (“the District Court”). 20. On 18 March 2002 the applicant filed an appeal on points of law (revizija). 21. On 9 October 2003 the Supreme Court (Vrhovni sud Srbije) quashed the judgments adopted at first and second instance and ordered a retrial before the Municipal Court. It held, inter alia, that the Municipality of Palilula was, indeed, obliged to enforce the decision of 17 August 1994, ordering the protected tenant's eviction, and, moreover, that the deadline for so doing had already expired. The court concluded that the applicant's claim thus had to be reconsidered on its merits and then went on to state that there was no legal avenue at the applicant's disposal which could have compelled the said municipality to honour “its own final and enforceable decision” of 17 August 1994. 22. The applicant received the decision of the Supreme Court on 17 December 2004. 23. On 29 December 2004 the applicant filed a submission with the Municipal Court, attempting to reformulate his original claim. In particular, he requested that the protected tenant be evicted from his flat and provided with adequate alternative accommodation. 24. On 20 January 2005 the Municipal Court rejected the applicant's request (nije dozvolio preinačenje tužbe). 25. The applicant subsequently appealed against this decision, but on 28 September 2005 the District Court declared his appeal inadmissible. 26. The proceedings before the Municipal Court therefore continued based on the applicant's initial claim for damages. 27. On 12 April 2006 the Municipal Court ruled in favour of the applicant. It ordered the Municipality of Palilula to pay him 5,318,300 Serbian Dinars (“RSD”), together with statutory interest as of 23 February 2006, in respect of the pecuniary damage suffered, as well as RSD 28,350 in legal costs. The court explained that the damage awarded was equivalent to the difference between the market price of the applicant's flat while “burdened” with a protected tenant and its estimated market value without this burden. It further referred to Article 1 of Protocol No. 1 and stated that the municipality was under a legal obligation to enforce the final eviction order at issue. The Municipality had had, over the years, sufficient funds and available flats in order to provide the applicant's protected tenant with adequate alternative accommodation (see paragraphs 33 and 35 below). Finally, there was no other legal avenue at the applicant's disposal by means of which he could have compelled the municipality to honour its own decision of 17 August 1994. 28. On 14 August 2006 the Municipality of Palilula filed an appeal with the District Court. 29. On 29 November 2006 the District Court quashed the impugned judgment and ordered a retrial at first instance. In its reasoning, inter alia, it explained that the applicant's rights were indeed breached but that he had not actually sold the flat in question which is why he was not entitled to the compensation awarded. 30. On 6 March 2007 the applicant reformulated his claim and sought compensation for the market rent which he could otherwise have earned while leasing the flat out to third parties. The applicant also proposed that the Municipal Court appoint an expert whose task would be to carry out the necessary calculation. 31. On 7 June 2007 the Municipal Court ruled partly in favour of the applicant. It ordered the Municipality of Palilula to pay him RSD 3,749,200, together with statutory interest as of 26 April 2007, in respect of the pecuniary damage sought, as well as RSD 28,000 in legal costs. In its reasoning, as regards the failure of the respondent to enforce its own eviction order of 17 August 1994, the Municipal Court reaffirmed its views expressed previously. There is, however, no evidence in the case file that this judgment has become final. 32. On 28 June 2002 the applicant filed a criminal complaint with the First Municipal Public Prosecutor's Office in Belgrade (Prvom opštinskom javnom tužilaštvu). He alleged that from 1996 to 2000 members of the Executive Council of the Palilula Municipality had mismanaged the available funding, earmarked for the “resettlement of protected tenants”, and misallocated the flats already available for this purpose. 33. On 7 April 2003 the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) informed the First Municipal Public Prosecutor's Office (“the Public Prosecutor's Office”) that from 1994 to 2000 a total of 275 social flats had been “given” to persons in need by the Municipality of Palilula. 34. On 19 May 2003 the Public Prosecutor's Office rejected the applicant's criminal complaint. In so doing, inter alia, it explained that: i) no crime had been committed; ii) only two social flats comparable to the applicant's had been available but that they had been given to persons in greater need; and iii) in any event, the Municipality of Palilula did not have the funding needed to secure adequate alternative accommodation for all protected tenants, irrespective of whether or not there was a formal eviction order already issued. 35. On 2 December 2003, within a subsequent judicial investigation (istraga) apparently concerning the same matter, the Municipality of Palilula informed the Municipal Court that from 1992 to September 2003 it had sold 4,018 municipal flats for RSD 24,522,352.01. 36. Secondly, the funds thus obtained were used in accordance with Article 27 of the Housing Act, and the Municipality did not adopt a special programme aimed at building new social housing (see paragraph 39 below). 37. Thirdly, there were 14 “protected tenants” in respect of whom final municipal eviction orders had already been issued but were yet to be enforced. 38. Finally, during the period in question, there were no “adequate” flats needed for the resettlement of the “protected tenants”, as required by Article 42 of the Housing Act, which is why the evictions (“resettlement”) could not have been carried out (see paragraph 40 below.) 39. Under Article 27 §§ 1 and 2 funds obtained through the sale of State-owned flats (“sredstva od stanova prodatih putem otkupa”) shall, “unless the [Housing Act] provides otherwise”, be used “solely” for the purpose of providing various social housing loans. Exceptionally, municipalities, as but one emanation of the State, may also use “a portion” of these funds “for their own development”. 40. Article 42 states, inter alia, that, by 31 December 2000, municipalities were obliged to (“opštin[e] ... [su bile] ... dužn[e da]”) secure alternative accommodation (“obezbed[e] stan za preseljenje”) to all those individuals with the status of a “protected tenant” (“nosioc[ima] stanarskog prava na stanu u svojini građana”), namely to individuals who had continued living in flats owned by other private persons whose property had been placed under this regime by the former communist authorities. In other words, the owners, or their legal heirs, could take possession of their flats and the tenants would be moved to other accommodation. For this to occur, however, the owner, or his or her legal heir, would have to have filed a request to this effect and proved that the flat at issue was acquired “as habitable” prior to 26 December 1958. Further, “priority” in securing alternative housing was to be granted to “owners in need” and the alternative accommodation to be given to the protected tenants had to be “adequate”. Finally, the municipalities had to treat this issue as a “priority”, both in terms of managing the flats already available and as regards channelling the public funds obtained through the sale of State-owned flats into additional housing projects. 41. The deadline referred to above (31 December 2000) was initially 31 December 1995, but had subsequently been extended by the amendments to the Housing Act adopted in 1995. 42. Articles 261-278 set out the details concerning the enforcement of final decisions adopted by the respondent State's administrative bodies. 43. In addition, the Supreme Court has consistently held that, pursuant to Article 274 § 3 of the former General Administrative Proceedings Act, as well as Article 264 § 3 of the current General Administrative Proceedings Act, enforcement of eviction orders was to be carried out ex officio, in view of the compelling public interest in this respect, and even in the absence of a formal enforcement request filed by the claimant personally (see, for example, Vrhovni sud Srbije, Ubr. 6613/95). 44. The relevant provisions of this Act read as follows: “The parties have the right to obtain a court decision in respect of their claims and proposals within a reasonable period of time. It is incumbent upon the court to conduct the proceedings without undue delay and economically.” 45. Article 25 of the Serbian Constitution (Ustav Republike Srbije) published in OG SRS no. 1/90 provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be covered by the Republic of Serbia or the public authority [in question].” 46. This Constitution was repealed on 8 November 2006, which is when the new Constitution (published in OG RS no. 98/06) entered into force. 47. The substance of Article 35 § 2 of the “new” Constitution corresponds, in its relevant part, to the above-cited text of Article 25 of the previous Constitution. 48. The relevant provisions of this Act read as follows: “The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”). This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.” “In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases. Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his or her unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.” 49. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).