CASE OF ŠORGIĆ v. SERBIA
No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
5. The applicant was born in 1962 and lives in Sopot, Serbia. 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. On 22 May 1995 an inheritance-related case (ostavinski postupak) was instituted before the Fifth Municipal Court in Belgrade. The applicant was only one of the parties formally involved. 8. On 14 June 1995 the Fifth Municipal Court suspended the proceedings since one of the heirs had contested the validity of a life-long support contract (ugovor o doživotnom izdržavanju) concerning the deceased’s flat. The inheritance proceedings were to be resumed once this issue had been resolved in a separate civil suit. 9. The deceased’s wife subsequently brought a number of cases against the applicant, the deceased’s son, who had concluded the said life-long support contract with his father (see paragraphs 15-33 below). 10. On 14 June 2000 and in view of the judgment adopted on 2 March 1999 (see paragraphs 15-17 below), the applicant requested that the inheritance proceedings be terminated given that there remained no estate to be divided between the heirs. 11. On 15 April 2010 and in view of the decisions adopted on 13 August 2001 and 20 April 2006 (see paragraphs 19, 20 and 25 below), the deceased’s wife requested that the inheritance proceedings be continued. 12. The applicant apparently opposed this motion, stating that the relevant parallel proceedings were still pending (see paragraphs 18-33 below). 13. On 7 September 2010 the inheritance proceedings resumed, but the hearing of the same date was adjourned due to the failure of the deceased’s wife to appear before the court. 14. The next hearing was scheduled for 21 February 2011. This hearing, however, was also adjourned, this time in order for the court to obtain additional information about the estate. The applicant, it seems, did not appear at this hearing. 15. On 20 September 1995 the deceased’s wife filed a claim against the applicant with the Fifth Municipal Court. She sought that the life-long support contract be declared fictitious (fiktivan). 16. On 2 March 1999 the Fifth Municipal Court ruled against the plaintiff, partly based on the “inadequately” specified cause of action. 17. Having been upheld on appeal, by 25 January 2000 this judgment became final. 18. On 15 August 2000 the deceased’s wife brought another claim against the applicant before the Fifth Municipal Court. She outlined the relevant facts and sought that the life-long support contract be partly annulled (poništen) and partly cancelled (raskinut). 19. On 25 December 2000 the Fifth Municipal Court adopted a partial judgement against the applicant (doneo delimičnu presudu). In so doing, it stated that one half of a disputed flat belonged to the plaintiff as the deceased’s spouse, and that the corresponding part of the life-long support contract was therefore to be deemed null and void. The presiding judge in the case was judge B. 20. On 13 August 2001 the District Court in Belgrade confirmed this judgment on appeal and it thereby became final. The appeal bench included judge D. 21. On 17 June 2003 the Fifth Municipal Court cancelled the remainder of the above contract, noting that the applicant had not been fulfilling his contractual obligations properly. 22. On 24 March 2004 the District Court in Belgrade quashed this judgment in view of the incoherence between its operative provisions and its reasoning. It did not, however, offer any guidance in terms of the desired outcome of the plaintiff’s remaining claim on its merits. The appeal bench included judges D and B. 23. On 21 January 2005 the Fifth Municipal Court again cancelled the remainder of the contract in question. 24. On 31 August 2005 the District Court in Belgrade confirmed this decision on appeal, and it thereby became final. 25. On 20 April 2006 the Supreme Court rejected the applicant’s appeal on points of law (revizija), reasoning that the applicant had not been complying with his contractual obligations. The Supreme Court’s bench included judge D. 26. On 12 July 2006 the applicant filed a request for the reopening of the above proceedings (predlog za ponavljanje postupka), which request, inter alia, referred to the unlawful composition of the courts on 24 March 2004 and 20 April 2006. 27. On 20 September 2006 the Fifth Municipal Court rejected the applicant’s request as inadmissible (odbacio predlog), applying the Civil Procedure Act 2004 (see Article 422 at paragraph 44 below). 28. On 9 October 2006 the applicant filed a request for the protection of legality (zahtev za zaštitu zakonitosti) with the Supreme Court. 29. On 16 October 2006 the Fifth Municipal Court informed the applicant that his request for the protection of legality would not be considered until a final decision had been adopted in respect of his request for reopening. 30. On 2 July 2008 the District Court in Belgrade quashed the Fifth Municipal Court’s decision of 20 September 2006 on appeal, noting that the applicable legislation was the Civil Procedure Act 1977 (see Articles 421.1 and 71.5 at paragraphs 40 and 36 below, in that order). 31. On 3 December 2008 the Fifth Municipal Court again rejected the applicant’s request for reopening as inadmissible. In particular, it applied the Civil Procedure Act 2004 and noted, inter alia, that the said legislation, unlike the Civil Procedure Act 1977, did not provide for reopening in cases where the composition of the courts was not in accordance with the law. 32. On an unspecified date thereafter the applicant appealed against this decision. 33. On 28 April 2010 the High Court in Belgrade, now acting as the court of second instance in the former District Court’s stead, quashed the impugned decision and ordered the court of first instance to re-examine the applicant’s request. The High Court described the impugned decision’s reasoning as incoherent, and reaffirmed that the applicable legislation was the Civil Procedure Act 1977. 34. On 22 May 2008 the Constitutional Court rejected as inadmissible the applicant’s appeal (ustavna žalba) lodged against the Fifth Municipal Court’s, the District Court’s and the Supreme Court’s decisions of 21 January 2005, 31 August 2005 and 20 April 2006, respectively. In so doing, it explained that all were rendered prior to the adoption of the new Serbian Constitution in November 2006. 35. On an unspecified date the applicant apparently lodged a further constitutional appeal concerning the fairness and length of the proceedings initiated on the basis of his request for reopening. 36. Article 71.5 provides, inter alia, that a judge may not sit in a case where he or she has already taken part in its adjudication before a lower court. 37. Article 72 § 1 provides that as soon as a judge discovers this ground for recusal, he or she must cease dealing with the case and request the president of the court to appoint another judge in his or her stead. 38. Articles 354 § 2 (1) and 365 § 2, inter alia, list a breach of Article 71.5 as a ground for appeal which, even if not specifically relied on by the appellant, shall be taken into account by the appeals court ex officio. 39. Articles 382 § 1, 383 and 400 § 1 provide that parties to a case may file an appeal on points of law (revizija) with the Supreme Court. They may, however, only do so against a final judgment or decision resulting in the termination of a lawsuit at second instance. Articles 385 § 1 (1) and 386 further specify that an appeal on points of law may be lodged if the composition of the lower courts was not in accordance with Article 71.5, but do not specify that this ground shall be taken into account by the Supreme Court ex officio. 40. Article 421.1, read in conjunction with Articles 427 and 428, provides that a case concluded by means of a final court decision shall be reopened, at the request of one of the parties, if Article 71.5 has not been complied with. 41. In 1987 and 1995, respectively, the Federal Court clarified that under Article 71.5 a judge could only be excluded from deciding on a remedy lodged against the very decision in whose adoption he or she had already participated. This provision, however, does not preclude a judge from sitting in a case in any other situation, including where he or she had otherwise taken part in its adjudication before a lower court (Gzs. 50/87 and Gzs. 36/95). 42. The substance of Articles 66 § 1 (6), 67 § 1, 361 § 2 (1), 372 § 2, 394 § 1, 396, 398 § 1 (1), 399 and 412 § 1 of the Civil Procedure Act 2004 essentially corresponds to the substance of the aforementioned Articles 71.5, 72 § 1, 73 § 1, 354 § 2 (1), 365 § 2, 382 § 1, 383, 385 § 1 (1), 386 and 400 § 1 of the Civil Procedure Act 1977. 43. Articles 378 and 411 provide, inter alia, that second and third instance courts may remit a case either to the same judge/panel which had already taken part in the adoption of the impugned decision or to another judge/panel of the same court. 44. Article 412 § 4 provides that an appeal on points of law may also be filed where a request for the reopening of proceedings has already been decided upon at second instance. 45. Article 422 of the Civil Procedure Act 2004 does not provide that a case concluded by means of a final court decision may be reopened if the composition of the courts was not in accordance with Article 66 § 1 (6), which provision, as noted above, essentially corresponds to Article 71.5 of the Civil Procedure Act 1977. 46. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. 47. Article 491 § 1 of the Civil Procedure Act 2004, however, provides that the Civil Procedure Act 1977 shall be applied to all cases where first instance proceedings have been concluded prior to 23 February 2005. Article 491 § 4 of the Civil Procedure Act 2004 further provides that in all cases which were brought before the said date the applicable legislation, as regards an appeal on points of law, shall be the legislation which was in force at the relevant time. 48. Articles 24 and 121 provide, inter alia, that should a legal heir of the deceased raise an issue in respect of what comprises the latter’s estate, the inheritance court shall instruct him or her to initiate a separate civil suit and suspend the inheritance proceedings pending its final outcome (do pravosnažnosti).