Notice of the judgment and decisions of the European Court of Human Rights that were published in March 2024 against the Republic of Serbia
European Court for human rights (hereinafter: Court) is in the period from 1 to 31published one judgment and five decisions in March 2024 against the Republic of Serbia.
Judgment in the caseBoskocevic brought by the Council. 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 6, paragraph 1 of the Convention were dismissed due to non-exhaustion of domestic legal remedies.
All five decisions were made by the Board. In two cases, the court declared the petitions inadmissible and rejected them due to obvious unfoundedness (Momčilović) and due to abuse of the right to individual petition (Perisic), while in three subjects deleted the applications from the list of cases by accepting them signed friendly settlements (Novović,Avramović and 5. dr. andIF DOO).
And - JUDGMENT
- Boskocevic against Serbia (number 37364/10, datedMarch 5, 2024)
The case refers to the applicant's complaint about the alleged non-execution of the judgment in his favor with regard to unpaid wages and the obstruction of the exercise of the right to an individual petition.
For the first time, a violation of the rights from Article 34 of the Convention was established in relation to the Republic of Serbia.
The applicant complained that shortly after submitting the petition to the Court, he was notified by the employer's director that he had violated his duties with a warning that he could be fired as a result.
- Circumstances of the case
The applicant, Mr. Milivoje Boškoćević,he was employed as a driver in the Public Enterprise "Shar Mountain National Park" in Kosovo and Metohija until 2017, when he retired.
In May 2005, he filed a lawsuit demanding that, in accordance with the regulations on the "Kosovo allowance", he be paid the difference between the salary he received and the salary that should have been paid to him.
In 2009, the competent courts ruled in favor of the applicant, and a decision on execution was made.
However, the judgment was not executed, because the applicant accepted an agreement with his employer to withdraw the proposal for execution.
The applicant claimed that against his will he signed an agreement with the employer on the method of settling the debt and withdrawing the proposal for execution. He tried to challenge the agreement in question by filing a constitutional appeal.
The Constitutional Court rejected the petitioner's constitutional appeal, judging that the contested agreement does not represent an act that can be challenged through a constitutional appeal.
Not long after submitting the application, the applicant received a notification from the employer's director at the time that by submitting the application, he violated his duties as an employee, and was warned that as a result, he could be fired even without conducting disciplinary proceedings.
- Complaints of the applicant
Referring to Article 6, paragraph 1 of the Convention (right to a fair trial) and Article 34 of the Convention (individual petition), the applicantcomplained about the non-execution of the judgment rendered in his favor with regard to unpaid wages and the obstruction of the right to submit an individual petition to the Court.
The petition was submitted to the Court on June 8, 2010.
- Decision of the Court
Article 6, paragraph 1 of the Convention
The court declared the applicant's complaint in the part related to the violation of the right to a fair trial from Article 6, paragraph 1 of the Convention inadmissible, bearing in mind that the applicant did not use all available legal remedies at the domestic level.
Namely, instead of directly submitting a constitutional appeal to the Constitutional Court against the agreement he signed with his employer, the applicant had the option of filing a lawsuit for the annulment of the aforementioned act and initiating civil proceedings.
If the applicant had used the claim in civil proceedings and it was not ruled in his favor, he would have had the opportunity to challenge the judgment of the competent court before the Constitutional Court, which would include an assessment of the merits of the request, especially in terms of considering the validity of the agreement.
Article 34 of the Convention
With regard to the complaint about the violation of Article 34 of the Convention, the Court found that the state is responsible for the actions of the applicant's employer and its director.
This is due to the fact that a public company, the applicant's employer, was established in the public interest for the purpose of preserving the natural resources of the Shar Mountain and has an annual business plan and tariffs approved by the Government, and therefore cannot be considered a "non-governmental organization". Furthermore, the warning letter sent to the applicant was signed by the director of the national park and was stamped with an official seal.
The Court emphasized that, in order for the Convention's system of individual applications to function effectively, it is imperative that applicants or potential applicants are able to communicate freely with the Court without any pressure from the authorities to withdraw or amend their complaints.
As the applicant was clearly and directly threatened with dismissal for submitting a petition to the Court and for not providing copies of correspondence on this issue, the Court concluded that this type of communication represented "pressure" and "intimidation", which violated Article 34.
- Just satisfaction (Article 41 of the Convention)
The applicant did not submit a request to the Court for damages.
II DECISIONS
- Momčilović v. Serbia (number 44530/18, dated March 28, 2024)
The case refers to the issue of the violation of the right to life from Article 2 of the Convention, in the context of the positive obligation of the state to conduct an effective investigation into the death of the applicant's mother, which was allegedly caused by medical negligence.
The court found that the applicant did not initiate civil proceedings in which her complaints would be adequately considered and an appropriate response would be provided.
- Circumstances of the case
The applicant's mother underwent tumor surgery in 2013, which was performed in a state hospital. A few days after being discharged from the hospital, her condition worsened, and in the next three months she was treated in several medical institutions. In the last discharge list from May 2013, she had numerous diagnoses. She died in August of the same year.
In October 2013, the applicant filed a criminal complaint against the doctor who operated on her mother, believing that during or after the intervention he "infected" her with sepsis, for which she was treated until her death seven months later.
In January 2016, the applicant's attorney submitted an objection to speed up the proceedings before the prosecution to the competent court. The objection was rejected as inadmissible, because in the specific case no criminal proceedings were initiated.
The applicant then, through her attorney, submitted a constitutional appeal to the Constitutional Court against the decision to reject the objection.
The Constitutional Court rejected her constitutional appeal.
- The applicant's complaint
Referring to Article 2 of the Convention, the applicant complained about the absence of an effective investigation into the death of her mother, which was allegedly caused by medical negligence.
- Decision of the Court
The government claimed that the petition should be rejected due to non-exhaustion of domestic legal remedies, because the applicant did not properly present her complaints before the Constitutional Court, nor did she initiate civil proceedings by filing a claim for damages.
The court considered that in this particular case there is no need to examine the objections of the Government, since the applicant's complaint is clearly unfounded in any case.
Namely, the Court established that the domestic legal system provided the applicant with the opportunity to initiate civil proceedings, within which she could receive appropriate answers and the opportunity for her arguments to be considered in a valid manner. The court noted that the applicant, however, did not use this means of legal protection, and rejected her complaint under Article 2 of the Convention as clearly unfounded.
- Perisic against Serbia (No. 8648/21, dated March 7, 2024, published on March 28, 2024)
In the petition, the applicant complained about the violation of the right to a trial within a reasonable time from Article 6, paragraph 1 of the Convention, due to the delayed execution of the domestic decision.
The Government made claims that the applicant did not inform the Court that in 2020 and 2022 the domestic courts found a violation of the indicated right and awarded her the amount of 800 euros (EUR) in the name of compensation for non-material damage. Therefore, the Government proposed that the Court reject the application in question due to abuse of the right to an individual application.
Bearing in mind that the applicant did not inform the court of the aforementioned fact before the Government received notification of the submitted application, which represents the very essence of the application, the Court accepted the Government's defense and found that such behavior of the applicant contradicts the purpose of the right to an individual application.
The Court also noted that lawyers must understand that, taking into account the Court's duty to investigate allegations of human rights violations, they must also demonstrate high professional prudence and meaningful cooperation in working with the Court, saving it from frivolous complaints. Therefore, lawyers must diligently inquire into all the details of the case, carefully following all relevant rules of procedure, and encourage their clients to do the same, both before and after the commencement of proceedings. Otherwise, intentional or negligent abuse of the Court's resources may jeopardize the credibility of the work of the lawyer in the eyes of the Court, and even if it occurs systematically, it may lead to a situation where certain lawyers are prohibited from representing the applicants.
Consequently, the Court made a decision to declare the application inadmissible due to abuse of the right to an individual application, in accordance with the provisions of Article 35, para. 3(a) and 4 of the Convention.
3), 4), 5) Novović against Serbia (number 31197/20, dated 15 February 2024, published March 14, 2024.),Avramović and 5 others. against Serbia (number 18139/23, dated 7. March 2024, published March 28, 2024.) andIF DOO v. Serbia (number, 40789/22 of 7. March 2024, published March 28, 2024.)
The court is in the caseNovović accepted the concluded friendly settlement and made a decision to delete the petition from its list of cases in accordance with Article 39 of the Convention. The case refers to a complaint regarding the violation of Article 6, paragraph 1 of the Convention due to non-execution of a domestic decision.
In subjectsAvramović and 5 others. andIF DOO, The Court also accepted the concluded friendly settlements and decided to delete the petitions from its list of cases in accordance with Article 39 of the Convention. Both cases refer to non-enforcement of domestic decisions made against social/state enterprises and complaints regarding Article 6, paragraph 1 of the Convention and Article 1 of Protocol no. 1 to the Convention.