CASE OF ŽIVKOVIĆ 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)
Branko Lubarda;Dmitry Dedov;Luis López Guerra
5. The applicant was born in 1941 and lives in Belgrade. 6. On 27 June 2001 the Obrenovac Municipal Court ordered a socially-owned company, Holding - Prva Iskra AD Barič (hereinafter “the debtor”), to pay the applicant specified amounts on account of compensation for expropriated real estate plus the costs of the civil proceedings. 7. On 18 March 2003, upon the applicant’s request to that effect, the Obrenovac Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 8. On 23 April 2003 the Privatisation Agency ordered the restructuring of the applicant’s debtor. As a consequence, the ongoing enforcement proceedings against the debtor would appear to have been stayed. 9. On 29 February 2016 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor. The applicant duly reported her claims based on the above-mentioned judgment to the insolvency administration. 10. The insolvency proceedings are still ongoing and the said court judgment remains unenforced to the present day. 11. According to publically available information the debtor is still, predominantly comprised of socially-owned capital (see http://pretraga2.apr.‌gov.rs/ObjedinjenePretrage/Search/Search, accessed on 7 February 2017). 12. On 7 October 2011 the applicant lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicant sought, inter alia, compensation for the pecuniary and non-pecuniary damage suffered due to the impugned non-enforcement. 13. On 15 May 2012 the applicant noted the adoption of the amendments to the Constitutional Court Act, and specified her compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicant requested the respective amounts awarded to her by the final judgment in question, whilst as regards the nonpecuniary damage sustained she claimed 1,000,000 Serbian dinars (approximately 9,500 euros (EUR)). 14. On 21 May 2014 the Constitutional Court found, in the operative part of its ruling (u izreci), that the applicant had indeed suffered a violation of her right to a fair trial within a reasonable time, as well as a violation of her property rights and awarded her EUR 1,000 in respect of the non-pecuniary damage in question. However, it rejected the compensation claim regarding the pecuniary damages sought by the applicant. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings. 15. In its reasoning, the Constitutional Court stated in respect of the compensation issue that the applicant’s pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal.