CASE OF POPOVIC v. SERBIA
Violation of Art. 6-1
4. The applicant was born in 1939 and lives in Bijela Brda. 5. On 9 April 1984 the applicant brought a civil action in the Beograd Third Municipal Court against a certain N.D., seeking repayment of a loan. 6. Having heard the applicant in person at a hearing on 20 June 2002, on 5 November 2002 the court gave a judgment accepting the applicant's claim. On 26 November 2003 the Beograd District Court quashed that judgment for factual shortcomings and remitted the case. In its decision, the District Court instructed the first-instance court to hear and confront the parties, as well as to hear the other witnesses proposed by the applicant with a view to establishing, inter alia, whether the loan had been made to N.D. or to his father, whether a part of it had in the meantime been repaid and whether the claim was time-barred. 7. In the resumed proceedings, the court held a hearing on 16 November 2004, which the applicant did not attend although duly summoned. On that occasion, his lawyer informed the court that the applicant was in poor health and needed surgery. Therefore, the applicant would not be able to attend court hearings, but maintained all his claims, as previously stated in his oral and written submissions to the court. 8. On 1 April 2005 the applicant submitted a medical certificate, stating that he suffered from paranoid psychosis with signs of hypochondria, and that he was unable to attend court hearings. 9. The court appears to have held further hearings on 17 June and 7 October 2005, both attended by the applicant's lawyer. It also obtained an expert opinion on 27 May 2005. 10. The court subsequently ordered the applicant's lawyer to inform it of the exact date and place where the applicant would be medically treated. It further contacted the medical institution which had issued the certificate of 1 April 2005, requesting its opinion on whether the applicant's health allowed him to be a party to the proceedings. It would appear that none of the court orders has ever been complied with. 11. At the hearing held on 26 September 2006 the applicant's lawyer specified the claim, whereas the respondent submitted that, if the applicant was ill, the court could not continue the proceedings. 12. The proceedings are still pending before the first-instance court. 13. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007). 14. The relevant provisions of this Act (hereafter referred to as the “CPA”) provide as follows: “During the course of the proceedings, the court shall ex officio verify whether the person appearing as a party may be party to the proceedings and whether he or she has the capacity to act...” “Should the court establish that the person appearing as party cannot be party to the proceedings, and that this obstacle cannot be eliminated, it will invite the plaintiff to undertake the necessary amendments to the claim...” “1. Relevant facts may also be established by hearing the parties. 2. The court shall decide to hear the parties when there is no other evidence or when, despite the presentation of other evidence, the court deems it necessary with a view to establishing relevant facts.” “... 2. The court may decide to hear only one of the parties, if the other party refuses to give a statement or does not appear [at the hearing] despite the court summons. 3. If a party dies in the course of the proceedings, or his or her repeated examination becomes impossible for some other reason, the court will read the minutes containing that party's statement.” “The party may be heard through another court only if he or she cannot come to the court in person due to obstacles which cannot be eliminated or at extremely high costs.” “1. The court may not use any compelling measures in respect of the party which did not appear at the scheduled court hearing [for the examination of the parties], nor can a party be forced to give a statement. 's failure to appear or refusal to give a statement.” “If a hearing is held before a new formation [of judges], the main hearing must recommence, but the chamber may, having consulted the parties, decide not to hear witnesses and expert witnesses or hold an on-site inspection again, but instead read the minutes of the evidence already taken.” 15. 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). 16. Sections 242, 243 and 245 of this Code define “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi) as separate criminal offences. 17. Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be met by the Republic of Serbia or the public authority [in question].” 18. This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force. 19. The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25. 20. Article 170 of the new Constitution provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by the Constitution. 21. Section 9 of the Constitutional Act on the Implementation of the Constitution (OG RS 98/06) provides that the election of Constitutional Court judges shall be finalised before the end of the first National Assembly.