PREDIC-JOKSIC v. SERBIA
Inadmissible
András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
1. The applicant, Ms Ljiljana Predić-Joksić, is a dual Serbian and Australian national who was born in 1949 and lives in Arncliffe, Australia. The Serbian Government (“the Government”) are represented by their Agent, Mr S. Carić. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 15 January 1997 the applicant filed a civil suit in Serbia against her two sisters, requesting the annulment of a contract according to which their late mother disposed of her property prior to her death, against the applicant’s expectations from the inheritance. Following a remittal, on 20 April 2007 the Municipal Court granted the applicant’s claim. On 6 August 2008 the District Court quashed the judgment of 20 April 2007 and returned the case to the first instance for a fresh examination. 4. On 4 December 2008 the applicant lodged a constitutional appeal, complaining about the length of the above-mentioned civil proceedings and requesting the Constitutional Court to quash the decision of 6 August 2008. The applicant did not request the Constitutional Court to award her any compensation for damages suffered. 5. On 5 May 2011 the Constitutional Court adopted a decision finding that the applicant’s right to have a hearing within a reasonable time had been violated and ordered the first and second instance courts to expedite the proceedings, while rejecting the request in relation to the decision of 6 August 2008. The court also ordered that its decision be published in the Official Gazette. 6. On 14 June 2011 the decision of 5 May 2011 was published in the Official Gazette. 7. On 22 September 2011 the Court of First Instance (Prvi osnovni sud) in Belgrade granted the applicant’s request in its entirety. This judgment would appear to be pending on appeal. 8. On 2 April 2007 the applicant filed another civil suit against one of her sisters, claiming damages for the sister’s sole use of the property in question. 9. The court held a number of hearings and in February 2008 appointed an expert to determine the damages. As the expert failed to submit his full expert report by April 2009, the court fined him and by September 2009 appointed another expert to submit his opinion on the amount of damages. 10. On 27 July 2009 the applicant filed a constitutional appeal complaining about the length of the said proceedings as well as the right to a fair trial and the right to property. 11. On 15 July 2010 the Constitutional Court found that there had been no violation of the applicant’s right to have her civil right determined within a reasonable time, while the other complaints were rejected as premature. 12. It would appear that these civil proceedings are still pending at first instance. 13. The Constitutional Court Act, in Article 89 §§ 2 and 3, provides for the following: “When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time. The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.” 14. Article 90 of the Constitutional Court Act provides that a person whose constitutional appeal had been adopted can request compensation for damages from the Commission for Compensation. 15. On 26 December 2011 the Constitutional Court Act was amended, inter alia to abolish the Commission for Compensation and provide that the Constitutional Court would itself determine the compensation for damage (Article 89 § 2), under the condition that a request to that effect had been filed together with the constitutional appeal (Article 85 § 3). 16. Article 3 of the Rules provided for the right of a person to file a request for compensation from the Commission should the Constitutional Court find a violation in that person’s case. 17. While it existed, it was a consistent practice of the Commission for Compensation only to award damages if the Constitutional Court had determined one’s right to compensation. The Constitutional Court, in its turn, only awarded compensation for damages should a person claim compensation in the constitutional appeal (see e.g. decisions of the Constitutional Court nos. Už-372/2008 of 16 October 2008, Už-536/2008 of 11 December 2008, Už-1685/2009 of 15 November 2009, Už-151/2007 of 1 April 2010, Už-5088/2010 and many others; a contrario see e.g. decisions nos. Už-36/2007 of 22 December 2009, Už-265/2008 of 22 December 2009, Už-204/2008 of 18 February 2010, Už-201/2008 of 14 July 2010 and many others).