Branko Galić against Serbia
The European Court of Human Rights (hereinafter: the Court) is on September 10, 2024. year, and on October 3 of the same year announced the decision in the case Galic against Serbia, number 12543/18.
It's a decisionpassed unanimouslythree-member Board.
The case refers to an untimely submitted request for the amendment of an individual act-solutions - basedog on legal provisions that were later declared unconstitutional by the Constitutional Court. The applicant complained that his right to a fair trial and his right to property were violated, because the provisions of the Bankruptcy Law, on the basis of which the bankruptcy proceedings against his company were opened and closed, were declared unconstitutional by the decision of the Constitutional Court. The court found inadequate exhaustion of domestic legal remedies and rejected the petition of the applicant. |
THE CIRCUMSTANCES CASES
The applicant founded a private company in January 1991. Later, after blocking the company's account for more than three years for an amount greater than 25,000,000 dinars, the National Bank of Serbia informed the Commercial Court in Zrenjanin about the above.
The commercial court in Zrenjanin opened and concluded bankruptcy proceedings (so-called automatic bankruptcy) against the applicant's company by decision of June 16, 2010. The applicant's company was deleted from the commercial register, the property of the applicant's company (bankruptcy debtor) was transferred to the property of the Republic of Serbia, and it was established that the Republic of Serbia can enter into litigation proceedings initiated by the claim of the applicant's company (bankruptcy debtor) for the collection of claims or the delivery of property. , and all in terms of the then valid provisions of Art. 150 to 154 of the Law on Bankruptcy ("Official Gazette of RS", number 104/2009).
On July 12, 2012, the Constitutional Court made a decisionIUz-850/2010 by which, among other things, he established that the provisions of art. 150 to 154 of the Law on Bankruptcy ("Official Gazette of RS", number 104/2009) are not in accordance with the Constitution. The aforementioned decision of the Constitutional Court was published in the "Official Gazette of the RS" on July 25, 2012. number 71/2012.
On April 22, 2014, the applicant requested the Commercial Court in Zrenjanin to amend the individual act (decision of June 16, 2010), referring to the declared unconstitutionality of the applied legal norms. On April 28, 2014, the Commercial Court in Zrenjanin rejected his request as untimely, since Article 61 of the Law on the Constitutional Court stipulates a deadline of six months from the date of publication of the Constitutional Court's decision in the "Official Gazette of the RS" for submitting this request. .
COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT
The applicant submitted an application to the Court on March 6, 2018.
In the petition, the applicant complained about the violation of the right to a fair trial from Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the violation of the right to peaceful enjoyment of property from Article 1 of Protocol No. 1 to the Convention .
THE DECISION THE COURT
The Court assessed that the applicant, as the founder and sole shareholder of the company, can claim to be a victim of alleged violations of the Convention that affect the rights of the company, because the company was deleted from the Register of Business Entities and could not apply to the Court as a legal entity. Therefore, the Court rejected the first objection of the Government of the Republic of Serbia (hereinafter: the Government) regarding the victim status of the applicant.
The Government also highlighted the complaint of inadequate exhaustion of domestic legal remedies, pointing to the fact that the applicant did not, in accordance with Article 61 of the Law on the Constitutional Court, timely submit a request to amend the contested decision after the decision of the Constitutional Court declaring the provisions applied in the specific case unconstitutional . In support of its assertions about the effectiveness of the legal remedy from Article 61 of the Law on the Constitutional Court, the Government attached 17 decisions of commercial courts, which amended the contested decisions.
The court accepted the Government's objection, stating that the decision rejecting the applicant's untimely request to change the decision was neither arbitrary nor clearly unreasonable. The aforementioned legal remedy was available to the applicant, but he did not use it due to his own fault.
Following all of the above, the Court rejected the petition of the applicant due to non-exhaustion of domestic legal remedies, in accordance with the provisions of Article 35, paragraph. 1. and 4. Conventions.