CASE OF KRNDIJA v. SERBIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The facts, as submitted by the parties, may be summarised as follows. 6. All four applicants were dismissed by their respective employers and subsequently brought separate civil claims against them, seeking reinstatement and/or pecuniary damages. They all obtained final court decisions in their favour, which remain unenforced to the present day. The debtor companies were registered as fully or predominantly socially/State-owned companies in the relevant public registers before and throughout the relevant insolvency/enforcement proceedings. 7. On 26 May 2004 the applicant was dismissed by his employer, DP Udarnik, a transport and transshipment company based in Belgrade (currently registered as Socially-owned company Udarnik (in liquidation)). On 9 June 2004 the applicant brought a civil action challenging that decision. He withdrew the request he had made for his outstanding salary on 20 December 2006. On the same date, the Third Belgrade Municipal Court: (a) declared the employer’s decision null and void; (b) ordered the applicant’s reinstatement within eight days, and (c) awarded the applicant RSD 49,500 on account of costs. 8. The Belgrade District Court upheld the judgment on 10 July 2008. It became enforceable on 26 December 2008. 9. In the meantime, the debtor company appears to have been subject to insolvency proceedings before the Commercial Court between 19 March and 14 May 2007. On the latter date the insolvency proceedings were stayed (obustavljen) and the debtor continued its business activities. 10. On 21 January 2009 the applicant filed a request for enforcement of the judgment of 20 December 2006 and the payment of the outstanding salaries till his reinstatement, submitting amendments on 6 March 2009. It would appear that the court sent the request to the debtor for comment on 2 April 2009, but it has not been served on the debtor. Throughout 2009 the applicant complained at least five times to the enforcement court about its failure to issue an enforcement order. In his complaint of 31 August 2009, the applicant submitted that the debtor was an active company and, in that respect, provided a copy of the decision on staying of insolvency proceedings of May 2007, certified by the Commercial Court. 11. On 13 October 2009 the enforcement court rejected the applicant’s request, incorrectly stating that the debtor was subject to pending insolvency proceedings (see paragraph 9 above). The applicant unsuccessfully appealed and wrote to the enforcement court again on numerous occasions. 12. In the meantime, between July 2009 and November 2011, attempts at liquidation of the debtor failed, as there were not enough assets to settle all the creditors’ claims. Another set of insolvency proceedings in respect of the debtor was opened on 19 December 2011, which appears to be still pending. The applicant registered his claim for costs within the insolvency proceedings. After a division of property, he received 2.89% of his claim for costs. 13. Between 1990 and 2007 the applicant was employed by Raška Holding AD – Pamučna predionica DOO, a company based in Novi Pazar. She was placed by her employer on compulsory paid leave until such time as normal production could be resumed and the company’s business performance had improved sufficiently. Whilst on leave, in accordance with the relevant domestic legislation, the applicant was entitled to a significantly reduced monthly income and payment of her pension, disability and other social security contributions. 14. In February 2007 many employees on compulsory leave were made redundant and took part in the Government’s “social programme”. After enquiring about her entitlements, on 14 March 2007 the applicant was served with a decision dated 18 March 1991 concerning her dismissal. 15. On 9 July 2007 the Novi Pazar Municipal Court declared the dismissal null and void and ordered her employer to: (i) reinstate her within eight days to a post which corresponded to her professional qualifications; (ii) pay her the minimum salary arrears for the period 8 November 1990 to 16 March 2007, together with statutory interest; (iii) pay her pension and disability insurance contributions for the period 1 January 1994 to 16 March 2007; and (iv) pay RSD 11,700 for her legal costs. 16. The judgment became final on 5 September 2007 and the Municipal Court ordered its enforcement on 3 December 2007. In the meantime, on 22 October 2007 the applicant was made redundant. 17. Following a claim by the applicant, on 6 May 2008 the Municipal Court ordered her employer to pay her pension and disability insurance contributions for the period 16 March to 22 October 2007 and RSD 13,000 for her legal costs, while rejecting her claim for her outstanding salary for the same period. The judgment became final on 22 January 2009. The enforcement courts rejected a request by the applicant for enforcement. On 24 February 2011 the Supreme Court issued an instruction stating that enforcement proceedings should be initiated, and an enforcement order was adopted on 7 July 2011. The applicant was also awarded RSD 7,420 for the enforcement costs. After a re-trial, on 18 October 2013 the Municipal Court ordered the applicant’s employer to also pay her outstanding salary for 16 March to 22 October 2007 (the period during which she was on paid leave) and RSD 13,000 for her legal costs. These proceedings are pending at domestic level. 18. On 5 January 2004 the Privatisation Agency ordered the restructuring of the debtor. Raška Holding Kompanija and its subsidiary companies, including the debtor, have been in the process of being restructured since 26 May 2006. On 11 September 2013 the Kraljevo Commercial Court opened preliminary insolvency proceedings in respect of the debtor. On 18 October 2013 the restructuring of the debtor was terminated. It would appear that insolvency proceedings in respect of the debtor were opened on 25 October 2013, and that the applicant’s claim was allowed by the Kraljevo Commercial Court on 26 January 2015 but has not yet been paid. The insolvency proceedings are still ongoing. 19. On 25 June 2010 the First Belgrade Municipal Court accepted the settlement of a dispute between the applicant and his employer, Livnica Ralja AD, a company based in Ralja. The terms were as follows: (a) the dismissal of the applicant in 2002 was to be declared null and void and the employer was to reinstate the applicant within eight days into a post which corresponded to his professional qualifications. (b) the employer was to pay the applicant RSD 1,544,783 and RSD 484,810.65 on account of his outstanding salary arrears and corresponding social contributions for the period 11 March 2002 to 31 May 2010, as well as the required court stamp duties. 20. The court’s decision became final and enforceable on the same date. 21. The Second Belgrade Municipal Court – Sopot Unit (hereinafter “the enforcement court”) issued an enforcement order on 29 June 2010. The applicant asked the court to expedite the enforcement proceedings on several occasions. On 28 March and 2 June 2011 the bailiff found no available movable assets to enforce the settlement. On 23 May 2011 the court issued an enforcement order in respect of the debtor’s immovable assets. 22. On 9 February 2011 the Belgrade Commercial Court opened preliminary insolvency proceedings, inviting the claimants to pay the deposit for the opening of the insolvency proceedings and register their claims. The call for the claimants was displayed on the court’s notice board between 9 February and 9 April 2011. On 18 April 2011 the court opened and terminated the insolvency proceedings in respect of the debtor. The court ordered the debtor’s liquidation as the latter had gone bankrupt, seemingly without having any legal successor, and none of the claimants had deposited costs of the proceedings or registered claims. The decision became final on 23 June 2011 and was published. It said that any property of the debtor had become State assets. 23. On 28 June 2011 that decision was registered (zabeležba) in the relevant public registers concerning the status of all companies and the debtor was struck off the relevant public registers. The date of its publication in the Official Gazette of the Republic of Serbia is not available on these registers. 24. On 18 October 2011 the enforcement court suspended (obustavio) the enforcement proceedings as no available assets had been found. 25. On 25 November 2011 the enforcement court terminated (prekinuo) the enforcement because of the debtor’s liquidation. 26. On 9 December 2004 the Leskovac Municipal Court ruled in favour of the applicant and ordered his employer, DP Galpres from Leskovac, to reinstate him, to pay him his outstanding salary arrears, to pay his corresponding pension and disability insurance contributions (doprinosi za penzijsko i invalidsko osiguranje) and his legal costs. 27. The part of the judgment in respect of reinstatement and contributions became final on 16 February 2005 and enforceable on 19 March 2005, while the Leskovac District Court quashed the remaining part concerning his salary arrears. 28. On 13 November 2006 the Leskovac Municipality Court awarded the salary arrears for the period of 2003 to 2006, together with relating contributions and costs. 29. The enforcement courts ordered enforcement of the above judgments on 20 May 2005 and 24 April 2007 respectively. 30. On 18 April 2015 the Court decided to give notice of the application to the Government. 31. On 7 August 2015 the Serbian Government sent their observations on the admissibility and merits. By a letter of 14 August 2015 the Government’s observations were forwarded to the applicant, who was invited to submit any written comments together with any claims for just satisfaction by 25 September 2015. 32. In the absence of any response, on 15 March 2016 the Registry tried to make enquiries with the applicant about whether he was still interested in pursuing the case, but to no avail. By a registered letter dated 17 March 2016, he was notified that the periods allowed for appointment of a lawyer and for submission of his observations and claim for just satisfaction had both expired and that the Court had extended the deadline for submissions until 28 April 2016. The Court also sent copies of the previous letters of 17 April and 14 August 2015 and enclosures. The applicant’s attention was again drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The return receipt indicated that the applicant received the letter on 23 March 2016. However, no response has been received.