CASE OF BACKOVIĆ v. SERBIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - claim dismissed
András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
6. The applicant was born in 1956 and lives in Sombor, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 24 February 2005 the applicant bought a store together with a plot of land from the P Company (plot A). 9. As the owner of the above real estate, as well as of plots B and C, the P Company was burdened with a landed servitude (lični realni teret) in favour of third persons, requiring their life-long maintenance (doživotno izdržavanje). 10. On the basis of the above contract, however, the servitude in question, being tied, inter alia, to plot A, was partly transferred to the applicant as its new owner. 11. On 30 March 2005 the applicant and the P Company concluded a court-certified amendment to the contract of 24 February 2005. The P Company thereby accepted to reimburse the applicant for any payments made in connection with the said servitude. This entitlement was itself constituted as a separate landed servitude (easement, stvarni realni teret) tied to plots B and C and established in favour of the applicant as the current owner of plot A, as well as any future owners thereof. 12. On 30 March 2005 the applicant filed a request with the Municipal Cadastre Office (Služba za katastar nepokretnosti) in Sombor, seeking registration of his easement. 13. On 11 April 2005 the Municipal Cadastre Office rejected the applicant’s request, stating that the registration sought could not be granted in view of the relevant domestic law. 14. On 18 July 2005 the applicant appealed against this decision. 15. On 30 January 2006 the applicant supplemented his appeal with an expert opinion provided by a well-known domestic legal expert, according to whom the applicant’s entitlement of 30 March 2005 was an easement and, as such, had had to be registered by the Municipal Cadastre Office. The expert, retained by the applicant, further noted that the rights of the third persons in question remained unaffected, thus implying that their consent was not needed. 16. On 29 May 2006 the legal branch of the Department of Geodesy (Republički geodetski zavod - sector za pravne poslove) confirmed the impugned decision of the Municipal Cadastre Office. It stated that the applicant had not offered any proof that the third persons in question had agreed to the arrangement reached on 24 February 2005 and 30 March 2005. It also noted that no judicial review by means of an administrative dispute was possible. 17. Both the Municipal Cadastre Office and the Department of Geodesy are administrative authorities and, as such, part of the respondent State’s executive branch of government. 18. Articles 1, 5 § 1, 58a and 58e provide that this Act shall regulate, inter alia, the registration of specified real estate-related legal entitlements, including landed servitudes (realni tereti i službenosti). Such entitlements shall be deemed constituted upon their registration. 19. Article 58v provides that registration of such entitlements may, inter alia, be granted on the basis of a legally valid contract. 20. Article 105 § 3 provides that no judicial review, by means of an administrative dispute, of a registration-related decision issued by the Department of Geodesy shall be possible. 21. Article 52 provides, inter alia, that a landed servitude shall be deemed constituted upon its registration, i.e. entry in the relevant land register (modus acquirendi). 22. Article 180 § 1 provides that all second instance decisions issued in accordance with “this Act” shall be subject to judicial review by means of an administrative dispute. 23. This Act entered into force on 11 September 2009, thereby repealing the Cadastre Act 1992. 24. Article 13 provides that final administrative decisions granting certain rights or imposing certain obligations may be annulled, cancelled or amended only in situations envisaged by this Act. The Supreme Court clarified that this provision implies that only administrative decisions granting certain rights or imposing certain obligations may be considered final (Uvp II 50/2004 of 26 January 2006). 25. Articles 32-38 set out the details as regards the possible recusal of civil servants who are authorised to decide in individual administrative matters. 26. Articles 5 provides that a civil servant (državni službenik) shall be obliged to act in accordance with the Constitution, the applicable legislation and the rules of his profession, as well as to adhere to the principles of impartiality and political neutrality. A civil servant shall further, in the course of his work, desist from expressing or asserting any political beliefs. 27. Article 6 provides that civil servants shall be accountable for the legality, quality and efficiency of their work, respectively. No one shall be allowed to influence them in the performance of their duties. 28. Article 18 provides, inter alia, that a civil servant shall be obliged to execute a verbal order issued by his superior except if he considers that the order in question is contrary to the law or the relevant professional rules or that its execution may “cause harm”. A civil servant shall be obliged to execute a repeated written order of his superior issued to the same effect. He shall, however, be obliged to refuse the execution of a verbal or a written order whose execution would amount to a punishable offence. In a situation of this kind the civil servant in question shall be obliged to report the entire matter, by means of a written submission, to his authorised supervisor. 29. Articles 49-81, 86 and 126-132 provide details as regards the recruitment of civil servants as well as the termination of their employment. Article 62 § 1 provides that civil servants shall, in principle, be employed on a permanent basis. 30. This Act entered into force on 1 July 2006, thus repealing earlier legislation regulating the status of civil servants. 31. Relevant sections of this report read as follows: “Pending the adoption and full implementation of new laws, the Serbian administration remains overstaffed but at the same time suffers from a shortage of qualified personnel and undue political interference, which affects both institutional and policy continuity. In the context of the reform strategy, the Serbian Parliament adopted the ... Law on Public Administration and the Law on Civil Servants ...” 32. Relevant sections of this report read as follows: “1.1.3. Public administration The legal framework providing for public administration reform (PAR) is largely in place in Serbia and administrative capacities are generally well developed, in particular at central level. A Strategy for PAR was adopted by the Government in 2004 and supplemented by an Action Plan covering the period 2009-2012 ... The implementation of the Strategy is making slow progress ... The Law on Civil Servants ..[,] adopted in 2005, regulates the position of employees in the public administration. The Law was subsequently amended to establish educational requirements for civil servant posts, aimed at increasing professionalism and reducing the risk of political influence and nepotism ... A significant number of appointments for senior civil servant positions are still pending. Selection procedures are not applied uniformly and, in the absence of criteria for final recruitment decisions, managers still have excessive discretionary powers when choosing candidates from lists prepared by the competitions’ selection panels. Competence and professionalism in appointments at management and lower levels in the administration need to become the rule ... A Human Resources Management Service was established in 2006, in charge of ... internal advertising and public competitions for non-management jobs ... and overseeing the general professional training programme for civil servants. A Strategy for the professional training of civil servants for the period 2011- 2013 was adopted in July 2011 ... However, only a small percentage of civil servants, and in particular a very small percentage of managers, takes part in this training. Induction training is not provided.”