PETROVIĆ v. SERBIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Mileta Petrović, is a Serbian national, who was born in 1955 and lives in Čačak. 2. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 15 March 2003 B.D. demolished a part of the ventilation system of the applicant’s restaurant. 5. On 17 March 2003 the applicant filed a civil trespass claim (tužba zbog smetanja poseda) against B.D. 6. On 14 April 2004 the Municipal Court (Opštinski sud) in Čačak ruled in favour of the applicant, ordering B.D. to reconstruct the ventilation system in question, in accordance with the original project design and under the supervision of mechanical and construction engineering experts, as well as to pay 109,800 Serbian dinars (“RSD”) (approximately 1,570 euros (“EUR”) at the relevant time) on account of the costs incurred. 7. By 23 July 2004 this decision became both final and enforceable. 8. On 8 September 2004, following the applicant’s request of 30 July 2004, the Municipal Court (hereinafter “the enforcement court”) issued an enforcement order. On 26 October 2004 the enforcement order was upheld on the appeal. 9. On 10 November 2004 the applicant requested the enforcement court to order B.D. to advance the costs of the construction works. By 30 June 2005 the enforcement court held a hearing, appointed two experts and requested their opinion on two different occasions, assessed the costs, collected offers, selected building contractors and finally, considered at two instances and enforced the decision ordering B.D. to advance the costs and authorising the applicant to undertake the necessary construction works thereof. The applicant objected to the experts’ reports and refused to collect the advance deposited with the enforcement court. 10. Between 20 September 2005 and 17 May 2006 the enforcement court ordered the applicant to commence with the construction works, appointed new experts and obtained two of their reports as to the modalities of the enforcement, held three hearings and examined witnesses in connection with the original construction works on the ventilation system, and twice ordered the applicant to have his building contractor provide an estimate of the building costs. The applicant objected to the experts’ reports, lodged a request for the protection of legality against the court order and refused to abide by it. 11. On 2 June 2006 the enforcement court terminated the enforcement proceedings. On the applicant’s appeal, this decision was quashed on 28 June 2006 and the enforcement court was instructed to prevent the parties’ abuse of procedural rights by undertaking the required actions in their stead. 12. In the period from 30 June 2006 to 29 January 2008 the enforcement court proceeded with the enforcement and scheduled ten hearings, two of which were adjourned due to the applicant’s and B.D.’s ill-health, one because of a mistake in summons, the other one for unspecified reasons and the last two as a result of the applicant’s request for a relinquishment to another court and for the failure of one of the experts to appear, who was therefore fined. In addition, the enforcement court appointed new experts, requested expert opinions on three different occasions, considered the applicant’s independent expert report and consulted a case-file from the administrative body which had issued the construction and use permits for the applicant’s restaurant. The applicant’s building contractor failed to provide project documentation specifically requested by the court three times. 13. In the meantime, the applicant lodged numerous complaints about the length of the enforcement proceedings with the President of the District Court (Okružni sud) in Čačak and the Ministry of Justice and filed several requests for the reclusion of, and criminal complaints against the judges and experts. 14. On 29 February 2008 the enforcement court terminated the enforcement proceedings. The court found in particular that, since the demolished ventilation system had not been constructed in line with the original project design, the supervision of its reconstruction was impossible and that, therefore, the Municipal Court decision of 14 April 2004 could not be enforced. On 30 June 2008 this decision was upheld on the appeal. 15. On 6 June 2005 the applicant instituted civil proceedings against B.D. and the respondent State for compensation for damage due to the excessive length of the enforcement proceedings. 16. On 21 April 2009 the Municipal Court (Prvi opštinski sud) in Belgrade rejected the applicant’s claim for compensation for lost earnings and declared the applicant’s claim for compensation for non-pecuniary damage withdrawn. 17. On 25 August 2011 the Appeals Court (Apelacioni sud) quashed the judgment of 21 April 2009 in the part rejecting the applicant’s claim against B.D. and remitted that part of the case to the first-instance court for reconsideration. At the same time the Appeals Court upheld the remainder of the judgment of 21 April 2009. 18. It would appear that the proceedings are still pending. 19. On 5 August 2008 the applicant filed a constitutional appeal complaining about the non-enforcement of the Municipal Court decision of 14 April 2004. 20. On 20 April 2011 the Constitutional Court (Ustavni sud) of the Republic of Serbia rejected the applicant’s constitutional appeal.