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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Hajrija SPICA v Serbia - 43014/06 [2010] ECHR 821 (18 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/821.html Cite as: [2010] ECHR 821 |
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SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
43014/06
by Hajrija SPICA
against Serbia
The
European Court of Human Rights (Second Section), sitting on
18
May 2010 as a Chamber composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and
Sally Dollé, Section
Registrar,
Having regard to the above application lodged on 18 October 2006,
Having regard to the declaration submitted by the respondent Government on 26 October 2009 requesting the Court to strike the application out of the list of cases and the applicants' reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The
applicant, Ms Hajrija Spica, is a Serbian national who was born in
1924 and lives in Novi Pazar. She was represented before the Court by
Ms E. Paljevac-Emrović, a lawyer practising in Novi Pazar.
The Serbian Government (“the Government”) were
represented by their Agent, Mr
S. Carić.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 September 1994 the applicant's late husband filed a property related civil suit before the Municipal Court in Novi Pazar. Following her husband's death, by 23 May 1996 the applicant had herself stepped into the proceedings. Numerous hearings have been held in the case, which appears to be still pending at first instance.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the delay in the domestic proceedings. She, furthermore, complained about the violation of her property rights.
THE LAW
The application was communicated to the Government under Article 6 § 1 of the Convention, regarding the procedural delay in the applicant's copyright suit.
By letter dated 26 October 2009, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration, signed by the Government's Agent, provided as follows:
“I declare that the Government of the Republic of Serbia are ready to accept that there had been a violation of the applicant's right under Article 6 paragraph 1 ... and Article 131 of the Convention and unilaterally offer to pay to the applicant ... the amount of EUR 3,000 ex gratia in respect of the application registered under no. 43014/06 before the European Court of Human Rights.
This sum, which covers any pecuniary and non-pecuniary damage as well as costs, shall be paid in dinar counter-value, free of any taxes that may be applicable and to an account ... [specified] ... by the applicant. The sum shall be payable within three months from the date of delivery of the [decision] by the Court. This payment will constitute the final resolution of the case.
The Government regret the occurrence of the actions which have led to the bringing of the present application.”
In a submission dated 8 February 2010, the applicant informed the Court that she could not accept the unilateral declaration, as the damage she had suffered had been much greater.
The Court recalls that Article 37 of the Convention provides that it may, at any stage of the proceedings, decide to strike an application out of its list of cases. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if it finds that “it is no longer justified to continue the examination of the application”, and it has done so in the past on the basis of certain unilateral declarations by respondent Governments even if the applicants had maintained their cases.
To this end, the Court will carefully examine the declaration made by the Government in the present case in the light of the principles emerging from its case-law (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for a State Party under Article 6 § 1 of the Convention concerning the right to a hearing within a reasonable time (see, among many others, Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006; Kudła v. Poland [GC], no. 30210/96, ECHR 2000 XI; Ilić v. Serbia, no. 30132/04, 9 October 2007). Where the Court has found a breach of this provision it has awarded just satisfaction, the amount of which has depended on the particular features of the case.
Having regard to the nature of the concessions contained in the Government's unilateral declaration in the present case, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court's awards in similar cases, when account is taken of the fact that some six years of the impugned proceedings fall within the Court's competence ratione temporis, Serbia having ratified the Convention on 3 March 2004), the Court finds that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention; see, for the relevant principles, Tahsin Acar, cited above; Haran v. Turkey, no. 25754/94, judgment of 26 March 2002).
The Court is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue with this examination (Article 37 § 1 in fine). Nevertheless, in the particular circumstances of the case, the Court considers that the State should still ensure that all necessary steps are taken to allow the proceedings to be concluded as speedily as possible, whilst ensuring the proper administration of justice.
Accordingly, this part of the application should be struck out of the list.
Since the impugned proceedings appear to be still pending, it is to be noted that the Court's strike-out decision is without prejudice to the merits of the applicant's domestic claim or, indeed, her ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.
Finally, the Court recalls that, should the respondent State fail to comply with the terms of its unilateral declaration in the present case, the application could be restored to the Court's list pursuant to Article 37 § 2 of the Convention (see Aleksentseva and 28 Others v. Russia (dec.), no. 75025/01, ECHR, 23 March 2006).
The applicant also complained about the violation of her property rights.
Given that the domestic proceedings are apparently still pending, the Court finds that this complaint is premature and, as such, inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration under Articles 6 § 1 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases, in accordance with Article 37 § 1 (c) of the Convention, that part of the application which concerns the declaration;
Declares the remainder of the application inadmissible.
Sally Dollé
Françoise
Tulkens
Registrar President
1 Note for members: the Government indeed mentioned Article 13 although it had not been cited either by the applicant or by the Court in its communication.