Notice of the judgment and decisions of the European Court of Human Rights that were published in June 2024 against the Republic of Serbia

European Court for human rights (hereinafter: the Court) is in the period from 1 to 30published 1 judgment and 22 decisions in June 2024 against the Republic of Serbia.

Judgment in the caseAntićbrought by the Board. A violation of the rights referred to in Article 34 of the Convention was establishedfor the protection of human rights and fundamental freedoms (hereinafter: the Convention), while the complaints under Article 3 of the Convention were not examined because the Court assessed thatit is not justified.

All decisions were also made by the Board. In one case, the court declared the application inadmissible and rejected it due to obvious unfoundedness (Marina Lazović), while in twenty-one subjects petitions deleted from the list of cases (in 19 cases by accepting signed friendly settlements, in one case adopting a unilateral Declaration and in one case judging that it is not justified to consider the petition further).

And - JUDGMENT

1. Antic against Serbia (number 41655/16, fromJune 20, 2024)

The case relates to the extradition of the applicant to the United States of America (hereinafter: USA) and the failure of the Republic of Serbia to comply with Rule 39 of the Rules of Procedure of the Court (proceeding according to a temporary measure determined by the Court).

The applicant complained that he was extradited to the USA, where he was threatened with life imprisonment, despite the temporary measure of the Court ordering the Republic of Serbia not to extradite the applicant while the proceedings before the Court are ongoing.

THE CIRCUMSTANCES CASES

On May 28, 2015, the applicant was accused of drug trafficking in the USA and Interpol issued a warrant for his arrest, after which he was deprived of his liberty in the Republic of Serbia on July 31, 2015, and detained.

On July 21, 2016, the applicant asked the Court to stop his extradition, given the risk of life imprisonment in the event of a conviction in the USA.

On July 22, 2016, the Court determined a temporary measure in this case and ordered the Government not to extradite the applicant to the USA while the proceedings before the Court continue. Despite the above, the applicant was extradited to the USA on July 25, 2016.

The applicant's attorney stated that, based on a plea agreement in the USA, the applicant was sentenced to 84 months in prison, and that in January 2022 he was released and deported to Canada (one of the applicant's two home countries, in addition to Bosnia and Herzegovina).

Also, the applicant's attorney initially stated that he had no contact with him since 2019. However, after the Government's objection that in that case the petition should be deleted from the Court's list of cases, the attorney claimed that since 2019 he had continued contact with the applicant via e-mail, which claim he did not support with evidence.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant submitted a petition to the Court on July 21, 2016.

In the petition, the applicant complained about the violation of the prohibition of torture from Article 3 of the Convention and the obstruction of the effective exercise of the right to an individual petition from Article 34 of the Convention, because he was extradited to the USA despite the Court's order to the Government that this should not be done while the proceedings before the Court are ongoing.

THE DECISION THE COURT

• Article 3 of the Convention

Due to the lack of contact between the applicant and his attorney, the Court decided that further examination of the petition under Article 3 of the Convention was not justified, and based on Article 37, paragraph 1 of the Convention, deleted this part of the petition from its list of cases.

• Article 34 of the Convention

With regard to the complaint regarding the violation of Article 34 of the Convention, the Court found that the Republic of Serbia is responsible for not ensuring appropriate communication between state authorities, which led to non-compliance with the Court's temporary measure.

The Court rejected as unfounded the Government's argument that the applicant unjustifiably delayed his request to the Court for a temporary measure, and that the Republic of Serbia took all reasonable steps to act on it.

The Court concluded that there were no circumstances that would objectively make it impossible to comply with the appropriate measure determined by the Court on the basis of Rule 39 of the Court's Rules of Procedure, and that the Republic of Serbia's failure to act on a temporary measure constitutes a violation of Article 34 of the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court awarded the applicant the amount of EUR 1,200.00 as compensation for non-material damage. 

II      DECISIONS

1. Marina Lazović against Serbia (No. 58721/16, dated May 28, published on June 20, 2024)

The case refers to the application of regulations in misdemeanor proceedings in which the applicant was found guilty of driving a motor vehicle for which import duties had not been paid, which was owned by her brother and which had French registration plates.

The applicant complained that domestic decisions were improperly explained, as well as that her conviction was based on domestic regulations that are unpredictable.

THE CIRCUMSTANCES CASES

The Customs Administration - Niš Customs House filed a request to initiate misdemeanor proceedings against the applicant, because she used a passenger vehicle in public traffic with foreign license plates for which there was no evidence that it was reported to the customs authority when entering the customs territory of the Republic of Serbia and for which they were not paid customs duties. Namely, the applicant was stopped by the traffic police in Leskovac and during the control it was determined that the passenger vehicle she was driving was the property of her brother who was not in the vehicle with her, while the applicant had the authority to drive it.

On October 17, 2013, the Misdemeanor Court in Leskovac - Department in Medveđa found the applicant guilty of violating the Customs Act, imposed a monetary and protective measure of confiscating the vehicle, and ordered her to pay the costs of the proceedings.

Deciding on the applicant's appeal, the Misdemeanor Appellate Court - Division in Nis, on January 14, 2014, changed the first-instance verdict in the part that related to the amount of the imposed sentence, so it was reduced.

The applicant submitted a constitutional complaint to the Constitutional Court against the first-instance and second-instance verdicts, emphasizing the violation of the right to a fair trial.

On March 1, 2016, the Constitutional Court rejected the applicant's constitutional appeal.

Customs and traffic regulations were relevant to the applicant's case.

Customs Law prescribes import duties for certain goods, but does not exclude the application of traffic regulations as long as the enforcement of customs regulations is not jeopardized.

Regulation on customs-approved handling of goods foresees the possibility of private use of one's own vehicle registered abroad without paying import duties, for domestic natural persons with approved temporary residence outside Serbia and members of their immediate families, as long as the owner of the vehicle is in the customs territory of Serbia.

Law on Road Traffic Safety stipulates that, although a person with a residence in Serbia does not normally have the right to drive a vehicle registered abroad, he acquires this right if he is accompanied by a person who has this right, i.e. persons residing in Serbia who had an approved residence abroad for a continuous period of at least 6 months.

Regulation on the obligation to register motor vehicles driven by persons residing in the Republic of Serbia stipulates that a person with a residence in Serbia cannot drive a vehicle registered abroad without registering it in Serbia, unless it is a person with a residence in Serbia who has an approved temporary residence abroad for longer than 6 months, or a member of the immediate family of such a person.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicant submitted the petition to the Court on September 27, 2016.

In the petition, she complained about the violation of the right to a fair trial from Article 6, paragraph 1 of the Convention and the violation of the principle of punishment based only on the law from Article 7 of the Convention, considering that the decisions of domestic courts in her case were based on unpredictable domestic legislation (because are customs and traffic regulations, taken together, contradictory) and that the decisions were not properly explained. She particularly pointed out that the provisions of the Customs Law were not applicable to her case, because the vehicle she was driving was never intended for import.

THE DECISION THE COURT

The court assessed that all the applicant's complaints should be investigated only according to Article 7 of the Convention, and that the misdemeanor in question related to customs was of a criminal nature and, as such, clearly entailed guarantees from the aforementioned Article of the Convention.

The court observed that the regulations on road traffic, which the applicant referred to as more favorable to her case, were not applicable in the way she represented it, since the conditions prescribed by them were not met. The applicant's brother was not in the vehicle with her, or even in Serbia, at the time when she was stopped by the police. The possibility of applying the term "close family" to the applicant and her brother was also questionable.

The court further noted that there are indeed differences between the customs and traffic regulations relevant to the case in question; however, the Court took the view that it is quite reasonable to prefer customs regulations in a case involving customs matters.

Taking into account all of the above, the Court concluded that the manner in which the relevant provisions of the Customs Law were applied in the case of the applicant was not contrary to Article 7 of the Convention.

Therefore, the Court assessed that the applicant's complaints were clearly unfounded and should be dismissed in accordance with Article 35, para. 3. (a) and 4. of the Convention.

2. Krsta Gigić and Milka Gigić against Serbia (number 27722/17, dated May 14, published June 6, 2024)

The case refers to the complaints of the applicants that their rights to a fair trial, to respect for private and family life, and the right to freedom of thought, conscience and religion were violated, because their claim for compensation for non-material damages for the mental pain suffered due to the removal of the memorial was rejected their late daughters with the explanation that it is not a form of damage for which monetary compensation can be recognized according to the provisions of Article 200 of the Law on Obligations.

This explanation was the result of the wrong application of the aforementioned legal provision, since the right to piety is included in the right to personal dignity, and for its violation, compensation for non-material damages can be demanded.

The court accepted the friendly settlement,ex gratia, which the parties to the dispute signed, and he removed the petition from his list of cases.

The subject was communicated to the Republic of Serbia ascase of influence(impact case).

THE CIRCUMSTANCES CASES

The applicants initiated civil proceedings for damages against P.G. for damaging and removing their late daughter's tombstone. The defendant was previously found guilty in the criminal proceedings for committing the crime of desecrating a grave and was given a suspended sentence.

According to the judgment of the Basic Court in Šabac, the defendantsisobliged to compensate the applicants for non-material damages for the mental pain suffered due to the removal of the memorial to their deceased to pay the daughters an amount of 70,000.00 dinars each, as well as to compensate them for the costs of the procedure.

After the defendant's appeal,The higher court in Šabac changed the first-instance verdict by rejecting the plaintiffs' claims with the explanation that compensation for non-material damages for mental pain suffered due to the removal of the tombstone "is not a form of non-material damage for which monetary compensation can be recognized according to the provisions of Article 200 of the Law on Obligations ".

The petitioners filed a constitutional appeal against the second-instance verdict to the Constitutional Court due to the violation of the right to dignity and free development of personality, the right to inviolability of physical and psychological integrity, the right to a fair trial and the freedom to perform religious ceremonies from Articles 23, 25, 32, paragraph 1 and 43 of the Constitution of the Republic of Serbia, as well as the right to respect for private and family life from Article 8 of the Convention. The Constitutional Court rejected their constitutional appeal.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicants submitted a petition to the Court on April 11, 2017.

In the petition, the applicants complained about violations of the right to a fair trial from Article 6, paraav 1 of the Convention, the right to respect for private and family life from Article 8 of the Convention and the right to freedom of thought, conscience and religion from Article 9 of the Convention,because the second-instance court refused to recognize their right to compensation for non-material damage.

THE DECISION THE COURT

After the parties to the proceedings signed an amicable settlement (ex gratia)by which the applicants agreed towaive any further claims against the Republic of Serbia regarding the facts that led to the filing of this petition, and the Republic of Serbia obliged to pay the applicants jointly and severally the amount of 4,500 euros for any non-material damage, costs and expenses, and to inform the domestic courts about the conclusion of the friendly settlement in this case and to provide them with domestic court practice on the proper application of Article 200 of the Law on the obligation relations regarding the request for compensation of non-material damage in similar circumstances, the Court, in accordance with Article 39 of the Convention, the application removed from his list of subjects.

3. Vitamil DOO NIS (No. 33188/22, dated May 30, published on June 20, 2024)

In the subjectVitamil DOO NIS The court decided to withdraw the application in question withownsubject lists, because the applicant did not respond to the written observations of the Republic of Serbia within the set deadline, nor within the subsequently set deadline. The court therefore concluded that the applicant has no intention of further participating in the proceedings, and that it is no longer justified to consider his application.

4. - 22) The court is in18 cases accepted friendly settlements, and inadopted a unilateral Declaration on one subject submitted by the Government.

Cases in which amicable settlements were concluded and a unilateral Declaration was submitted represent well-established practice of the Court (so-calledWECL – well-established case-law), and settlements were concluded and a unilateral Declaration was submitted in order to reduce the total costs before the Court and consequently less payments from budget funds. All these cases follow the practice of the Court from the judgmentLilić et al. against Serbia(No. 16857/19 and 43001/19, dated January 14, 2021) according to which the duration of bankruptcy proceedings against social or state enterprises over one year is excessive.