Judgment (Merits and Just Satisfaction) of Court (Second Section), February 11, 2014 (case CASE OF MAŠIREVIĆ v. SERBIA)
|Issuing Organization:||Court (Second Section)|
|Resolution Date:||February 11, 2014|
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings ; Article 6-1 - Access to court) ; Non-pecuniary damage - award ; Respondent State to take individual measures (Article 46-2 - Individual measures)
SECOND SECTION CASE OF MAŠIREVIĆ v. SERBIA (Application no. 30671/08) JUDGMENT STRASBOURG 11 February 2014 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Maširević v. Serbia,The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,
Paulo Pinto de Albuquerque,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,Having deliberated in private on 21 January 2014,Delivers the following judgment, which was adopted on that date:
The case originated in an application (no. 30671/08) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Milan Maširević (“the applicant”), on 13 May 2008.
The applicant was represented by Mr G. Todorić, a lawyer practising in Beočin. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
On 6 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1940 and lives in Sombor.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 July 1998 the applicant, a practising lawyer, filed a civil claim with the Municipal Court in Novi Sad, seeking payment of fees from a private insurance company (“the respondent”) for the service rendered on account of a legal fee agreement concluded in 1995.
On 17 September 1998 the Municipal Court ordered that payment (izdao platni nalog). The respondent objected to this order.
On 27 September 2001, in the course of a hearing, the respondent filed a counter-claim, requesting the Municipal Court to declare the 1995 contract null and void.
On 16 September 2002 the Municipal Court decided to join the proceeding initiated by the claim and the counter-claim.
On 24 November 2003 the Municipal Court quashed the payment order of 17 September 1998, rejected the applicant’s claim, declared a part of the contract void and decided that the other part of the contract remained in force.
On an unspecified date the applicant appealed against this judgment.
On 24 February 2005 the District Court in Novi Sad upheld this judgment on appeal.
On an unspecified date in April 2005, the applicant filed an appeal on points of law (revizija).
On 30 November 2006 the Supreme Court returned the file to the District Court, which had apparently failed to adjudicate a part of the applicant’s appeal.
On 25 April 2007 the District Court adopted a supplementary judgment (dopunska presuda), rejecting that part of the applicant’s appeal.
On 24 October 2007 the Supreme Court dismissed the applicant’s appeal on points of law (odbacio reviziju kao nedozvoljenu), stating that the applicant was not entitled to lodge it, given that Article 84 of the Civil Procedure Act 2004 prescribes that an appeal on points of law may only be submitted by an attorney at law, not the plaintiff personally. The Supreme Court specified that, according to this Act, parties to the proceedings had lost the legal capacity to file an appeal on points of law individually, even if they were themselves attorneys at law.
The decision of 24 October 2007 was served on the applicant on 14 January 2008.
On 11 February 2008 the applicant lodged an appeal with the Constitutional Court of Serbia.
On 13 May 2008 the Constitutional Court requested the applicant to specify his complaint.
On 6 June 2008 the applicant filed his amended constitutional appeal.
On 25 March 2009 the Constitutional Court dismissed the applicant’s appeal as incomplete.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Civil Procedure Act 1977 (Zakon o parničnom postupku; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91 and the Official Gazette of the Federal Republic of Yugoslavia, nos. 27/92, 31/93, 24/94 and 12/98)
Article 382 § 1 provides that parties to the proceedings shall have the right to file an appeal on points of law (revizija) with the Supreme Court within one month as of the date of receipt of the judgment rendered on appeal.
In accordance with Articles 383 and 394-397, inter alia, the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts.
B. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Serbia - OG RS - nos. 125/04 and 111/09)
The Civil Procedure Act 2004 (hereinafter “the 2004 Act”) entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977 (hereinafter “the 1977 Act”).
Article 84 § 2 provides that a party must be represented by legal counsel in the proceedings initiated on the basis of an appeal on points of law.
Article 401 § 2(2) provides that an appeal on points of law shall be declared inadmissible, inter alia, if it was lodged by an individual who is not a practising lawyer.
Article 491 § 4 provides that “the applicable rules of civil procedure, as regards an appeal on points of law lodged against a decision of a second-instance...
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