CASE OF VLAHOVIĆ v. SERBIA
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
6. The applicant was born in 1955 and lives in Niš, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 11 May 2001 the Municipal Court in Niš (“Municipal Court”) ruled in favour of the applicant and ordered the respondent “socially-owned” company (see paragraph 46 below), “Vagonka” (“the debtor”), to pay him: i. salary arrears in the amount of 98,001 Dinars (“RSD”, approximately 1,661 euros, “EUR”) plus statutory interest as of 27 January 2001; ii. 267,620 RSD (approximately 4,537 EUR) in already accrued statutory interest, and iii. 800 RSD (approximately 14 EUR) for his legal costs. 9. By 15 June 2001 this judgment became final. 10. On 22 June 2001 the applicant filed a request for the enforcement of the judgment, proposing that it be carried out through the auctioning of the debtor’s movable assets. 11. On 4 October 2001 the Municipal Court accepted the applicant’s request and issued an enforcement order (I.br. 1706/01). 12. This order subsequently became final. 13. The Municipal Court thereafter attempted several auctions but to no avail. 14. On 2 July 2002 the Municipal Court reduced the sum awarded to the applicant in the above judgment by 95,730 RSD (approximately 1,578 EUR), which amount the applicant owed the debtor based on a prior transaction within a separate set of enforcement proceedings. 15. On 28 November 2002 the applicant filed another request for the enforcement of the above judgment, this time proposing that it be carried out by means of a bank transfer and that the total sum awarded therein be reduced by 95,730 RSD. 16. On 13 December 2002 the Municipal Court accepted the applicant’s request and issued an enforcement order (I.br. 3974/02). 17. By 4 February 2003 this order became final. 18. On 25 February 2003 the Municipal Court provided the Central Bank (Narodna banka Srbije) with the enforcement order, as well as the debtor’s bank account details. 19. On 20 March 2003 the Municipal Court provided the Central Bank with additional specifications concerning the enforcement ordered. 20. On 6 October 2004 the applicant urged the Central Bank and the Ministry of Finance to ensure effective implementation of the Municipal Court’s enforcement order dated 13 December 2002 (I.br. 3974/02). 21. On 29 November 2005 the applicant requested the Municipal Court to provide him with a complete list of the debtor’s assets. 22. On 19 January 2006 the Privatisation Agency (Agencija za privatizaciju) published a public announcement inviting all of the debtor’s creditors to report their claims, noting, however, that the private creditors were not legally obliged to do so. 23. On 16 June 2006 the same agency accepted a privatisation programme for the debtor. 24. On 29 August 2006 the applicant wrote to the Central Bank. He stated that the debtor’s bank account had apparently not been blocked despite the fact that there was a binding court decision so ordering. 25. On the same date the applicant complained to the Privatisation Agency, referring to his application filed with the Court. 26. On 31 August 2006 the applicant received a letter form the Central Bank, informing him that on 10 August 2006 the above enforcement had been stayed at the initiative of the Privatisation Agency. 27. On 4 September 2006 the Privatisation Agency itself sent a letter to the applicant, explaining that the decision to privatise the debtor, by means of a public auction, had been adopted on 11 January 2006. It then, inter alia, referred to Article 31 of the Amendments and Additions to the Privatisation Act (see paragraph 45 below) and concluded that the enforcement proceedings at issue had to be stayed, ex lege, for a period of two years beginning on 11 January 2006. 28. On 12 February 2007 an unrelated final judgment, rendered in favour of a third party, was enforced against the debtor by means of a bank transfer. 29. On 21 February 2007 86.92% of the debtor’s socially-owned capital was privatised. 30. On 26 February 2007 the Privatisation Agency withdrew the instruction issued to the Central Bank. 31. On 2 March 2007 the Central Bank resumed the enforcement ordered by the Municipal Court. 32. On 29 May 2007 the President of the Supreme Court (Vrhovni sud Srbije) confirmed that judicial enforcement proceedings could not be stayed in respect of a company undergoing privatisation without restructuring. She also noted that, in any event, it was within the sole competence of the enforcement court to rule in this regard. 33. On 4 June 2007 the Deputy President of the High Commercial Court (Viši trgovinski sud) confirmed that, in the absence of restructuring, no stay of enforcement was possible. 34. On 4 July 2007 the Privatisation Agency confirmed that the debtor had not been restructured as part of its privatisation process. 35. On 4 October 2007 the Central Bank carried out the enforcement ordered by the Municipal Court. 36. On 12 December 2007 the applicant filed a new claim with the Municipal Court, seeking that the debtor be ordered to pay additional statutory interest in respect of the RSD 267,620 already awarded in his favour (see paragraph 8 above). These proceedings are still pending. 37. Article 4 § 1 provided that all enforcement proceedings were to be conducted urgently. 38. Under Article 59 only the court in charge of these proceedings had the right to stay them. 39. Articles 63-84 and 180-188 regulated enforcement by means of a bank transfer, as well as enforcement through the auctioning of the debtor’s movable assets. 40. The Enforcement Procedure Act 2004 (“the 2004 Act”) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000 (“the 2000 Act”). 41. Article 304 of the 2004 Act, however, provides that all enforcement proceedings instituted prior to 23 February 2005 are to be concluded in accordance with the 2000 Act. 42. Articles 5 and 6 provide, inter alia, that judicial review proceedings may only be brought against an administrative decision issued by a competent State body. 43. Under Articles 47, 48 and 57, inter alia, the Serbian Central Bank shall comply with a final judicial execution order providing for enforcement by means of a bank transfer and shall, in so doing, instruct the “debtor’s bank” to transfer the amount in question. 44. Articles 19-20đ set out the details as regards the restructuring of companies about to be privatised. This restructuring, however, is optional and a company may be sold without having been restructured if the Privatisation Agency so decides. 45. Article 31 provides that a company whose restructuring commenced prior to 7 June 2005, as part of an ongoing privatisation, cannot be “subjected to an enforcement procedure” within one year of that date. If the decision to restructure a company, however, was not adopted prior to 7 June 2005, the relevant time limit shall be two years as of the subsequent adoption of a decision to this effect. Any ongoing enforcement proceedings shall be stayed while new enforcement proceedings shall not be instituted until the expiry of the above time-limits. 46. The relevant provisions of this legislation are set out in the R. Kačapor and Others v. Serbia judgment (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 68-76, 15 January 2008). 47. Other relevant provisions are set out in the Cvetković v. Serbia judgment (no. 17271/04, §§ 28-34, 10 June 2008, not yet final).