CASE OF MARČIĆ AND OTHERS v. SERBIA
Violation of P1-1
4. The applicants, Mr Srbislav Marčić (the “first applicant”), Mr Stevan Kostić (the “second applicant”), Mr Slavko Pešić (the “third applicant”), Mr Radoslav Pesić (the “fourth applicant”), Mr Časlav Stošić (the “fifth applicant”), Mr Sreten Stojanović (the “sixth applicant”), Mr Budimir Stajić (the “seventh applicant”), Mr Petar Pesić (the “eighth applicant”), Mr Slađan Stanisavljević (the “ninth applicant”), Mr Branko Dinić (the “tenth applicant”), Mr Saćip Demić (the “eleventh applicant”), Mr Dragan Živković (the “twelfth applicant”), Mr Dragan Nikolić (the “thirteenth applicant”), Mr Zoran Stanojević (the “fourteenth applicant”), Mr Mile Milenković (the “fifteenth applicant”), Ms Branka Mirčić (the “sixteenth applicant”) and Ms Ljiljana Petrović (the “seventeenth applicant”) were all, at the relevant time, citizens of the State Union of Serbia and Montenegro who lived in Vladičin Han, Surdulica, Relince, Suva Morava, Suva Morava, Prekodolce, Prekodolce, Vranje, Vladičin Han, Žitorađe, Prekodolce, Vladičin Han, Ravna Reka, Suva Morava, Surdulica, Vladičin Han and Vladičin Han, respectively. 5. In the 1980s all the applicants, except for the twelfth, sixteenth and seventeenth, were employed with “Mehanizacija”, an organisational unit (osnovna organizacija udruženog rada) of a State-owned company called “Erozija”, based in Vladičin Han, Serbia. 6. The father of the twelfth applicant and that of both the sixteenth and seventeenth applicants also worked for the same employer but they died in 1994 and 2001 respectively. 7. On an unspecified date the aforementioned employees issued civil proceedings against “Mehanizacija” before the Labour Court (Osnovni sud udruženog rada) in Vranje, seeking the payment of salaries which they had earned while working on a project in Iraq. 8. On 10 March 1988 the Commercial Court (Okružni privredni sud) in Leskovac opened insolvency proceedings (stečajni postupak) in respect of “Mehanizacija” (“the debtor”), its decision being published in the Official Gazette of the Socialist Federal Republic of Yugoslavia dated 8 April 1988. 9. Several days prior to this date, the same court appears to have instituted separate insolvency proceedings in respect of “Erozija”. 10. On 20 October 1988 the Labour Court informed the Commercial Court about the plaintiffs' claims which had been specified in US Dollars (“USD”). 11. On 15 October 1990 the Commercial Court recognised these claims as follows: USD 5,240.80 in respect of the first applicant; USD 4,980.80 in respect of the second applicant; USD 2,269.30 in respect of the third applicant; USD 3,244.95 in respect of the fourth applicant; USD 4,935.55 in respect of the fifth applicant; USD 839 in respect of the sixth applicant; USD 4,872.95 in respect of the seventh applicant; USD 4,181.20 in respect of the eighth applicant; USD 5,055.85 in respect of the ninth applicant; USD 5,003.55 in respect of the tenth applicant; USD 2,838.10 in respect of the eleventh applicant; USD 5,173.25 in respect of the twelfth applicant's father; USD 4,186.80 in respect of the thirteenth applicant; USD 4,768.40 in respect of the fourteenth applicant; USD 4,800.00 in respect of the fifteenth applicant; and USD 3,447.50 in respect of the father of the sixteenth and the seventeenth applicants. 12. On 27 December 1990, taking into account the currency exchange rate and the available assets converted into cash (deo unovčene stečajne mase za raspodelu), the Commercial Court adopted a formal decision specifying the exact amounts to be paid by the debtor in Yugoslav Dinars (“YUD”): YUD 2,139 to the first applicant; YUD 2,031 to the second applicant; YUD 925 to the third applicant; YUD 1,323 to the fourth applicant; YUD 2,013 to the fifth applicant; YUD 342 to the sixth applicant; YUD 1,988 to the seventh applicant; YUD 1,705 to the eight applicant; YUD 2,062 to the ninth applicant; YUD 2,041 to the tenth applicant; YUD 1,157 to the eleventh applicant; YUD 2,110 to the twelfth applicant's father; YUD 1,708 to the thirteenth applicant; YUD 1,945 to the fourteenth applicant; YUD 1,956 to the fifteenth applicant; YUD 1,406 to the father of the sixteenth and the seventeenth applicants. All sums were to be paid within fifteen days of the date when the decision of the Commercial Court became final. 13. On 12 February 1991 the Commercial Court's decision was upheld by the High Commercial Court (Viši privredni sud Srbije) and it thereby became final. 14. The claimants appear to have subsequently informed the Commercial Court that they would be willing to accept 40% of their claims in USD (see paragraph 11 above). 15. On 13 March 1996 and 28 August 2001, respectively, the Municipal Court (Opštinski sud) in Vladičin Han declared the twelfth, sixteenth and seventeenth applicants to be their fathers' legal heirs. 16. On 13 December 2004 the applicants sent a letter to the Commercial Court seeking access to the case file, a copy of the formal decision concluding the insolvency proceedings, proof that such a decision, if issued, was published in the Official Gazette and an additional copy of the “cover page” of the case file specifically indicating that the proceedings had ended. 17. In response, they received only a certified copy of the “cover page” without the prescribed indication that the proceedings in question had been concluded. 18. On 7 March 2005 and 1 April 2005 the applicants complained to the Commercial Court and the President of the High Commercial Court. They requested that the proceedings be expedited and noted that the case had been pending for more than 16 years but that they were yet to receive the amounts awarded. 19. It would appear that all the other creditors in the insolvency proceedings had their claims met by the debtor. 20. The Government provided a copy of a form issued by the Registry of the Commercial Court, containing, inter alia, the date “27 December 1990” next to the standard printed rubric entitled “on completion of all business arising from the insolvency proceedings”. 21. Articles 209 and 210, inter alia, stated that special symbols had to be placed next to the registered number of a case, indicating that the proceedings had been concluded. 22. The 2003 Rules repealed the 1993 Rules in July 2003. 23. Articles 236 and 237 of the 2003 Rules correspond, in the relevant part, to the aforementioned text of Articles 209 and 210 of the 1993 Rules. 24. In accordance with Article 146 of the Composition, Insolvency and Liquidation Act 1989 (Zakon o prinudnom poravnanju, stečaju i likvidaciji; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - no. 84/89, as well as in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 37/93 and 28/96) and Article 120 of the subsequent Insolvency Procedure Act 2004 (Zakon o stečajom postupku; published in OG RS no. 84/04), the insolvency court has to pay the creditors ex officio within fifteen days of/immediately after the decision on the division of the debtor's assets becomes final. 25. Under Article 99 of the 1989 Act and Article 73 of the 2004 Act, starting with the date of institution of the insolvency proceedings, no separate enforcement proceedings in respect of the creditors' main claims can be brought against the same debtor, while any such proceedings which might still be ongoing must be discontinued. 26. In accordance with Articles 149 and 151 of the 1989 Act, as well as Article 125 of the 2004 Act, the insolvency court shall adopt a formal decision upon the “conclusion” (zaključenje) of the insolvency proceedings. This decision shall then be published in the Official Gazette and forwarded to the State's competent “registration” body. 27. Article 20 provides that property can be acquired ex lege, through a legal transaction, by means of inheritance, or on the basis of a decision issued by the State in accordance with the law. 28. Article 36 provides that the deceased's property shall be transferred ex lege to the legal heirs, at the moment of death. 29. Article 130 of the Inheritance Act 1974 (Zakon o nasleđivanju, published in the Official Gazette of the Socialist Republic of Serbia - OG SRS nos. 52/74, 1/80 and 25/82) and Article 212 § 1 of the subsequent Inheritance Act 1995 (Zakon o nasleđivanju, published in OG RS no. 46/95) both provide that the deceased's estate shall be transferred ex lege to the legal heirs at the moment of death. 30. Article 371 provides that all claims shall become time-barred (zastarevaju) within ten years, unless this Act states otherwise. 31. Article 379 § 1 provides, inter alia, that all claims recognised by a final court decision shall become time-barred within ten years, including those claims which would otherwise have become time-barred within a shorter period of time. 32. Article 360 § 3 provides that courts shall not take into account whether a given claim is time-barred unless and until there is a specific objection by the debtor to this effect. 33. The relevant provisions of this Act are set out in the V.A.M. v. Serbia judgment (no. 39177/05, § 70, 13 March 2007). 34. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).