BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF NANKOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 26541/02)
JUDGMENT
STRASBOURG
29
November 2007
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 Nankov v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mr J.S. Phillips,
Deputy Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26541/02) against the
former Yugoslav Republic of Macedonia lodged with the
Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Macedonian national, Mr Ljuben Nankov (“the applicant”),
on 3 July 2002.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
21 October 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in Gostivar.
- On
24 March 1992 preliminary investigations were opened against the
applicant. Five hearings were held during these proceedings. On
18 June 1992 the public prosecutor lodged an indictment
against him on account of “grievous offences against the
general safety” because on 19 October 1991, while
employed in a supervisory position at a power supply company and
contrary to safety requirements, he did not cut the power supply from
the grid of the power line on which Mr B. was carrying out some
repair works, causing the latter's death.
-
Between 4 September 1992 and 8 October 1993 the then Gostivar
Municipal Court (Општински
суд) (“the trial court”)
scheduled eight hearings in the course of which it obtained three
expert reports, heard evidence from the applicant and witnesses, and
carried out an on-site examination.
- On
8 October 1993 the trial court upheld the indictment and sentenced
the applicant to one year's imprisonment.
- At
the public hearing held on 23 March 1994, the then District Court of
Skopje (Окружен
суд) (“the
Appeal Court”) upheld the applicant's appeal of 17 November
1993 and quashed that decision finding that the lower court had
erroneously established the facts and wrongly assessed the evidence.
-
The Government stated that out of seven hearings scheduled between 25
April 1994 and 2 March 1995, two hearings were adjourned at the
applicant's request. No copy of the minutes was submitted in support
of this assertion. During this period, the trial court examined the
applicant and witnesses and carried out another on-site inspection.
-
On 2 March 1995 the trial court found the applicant guilty and
sentenced him to one year and two months' imprisonment. This decision
was served on him on 12 June 1995. Both parties appealed.
-
At a public hearing of 14 May 1995, the Appeal Court quashed this
decision, holding that the lower court had erred in its assessment of
the facts, in particular that it had overlooked the expert reports
concerning the impact of weather conditions and other circumstances
related to Mr B.'s death.
-
On 4 September 1996 the trial judge withdrew from the case at his own
request.
-
The Government stated that the hearings of 28 March and 24 April 1997
and 10 December 1999 were postponed for reasons imputable to the
applicant. No copy of the minutes was submitted in support of this
claim.
-
On 13 October 1999 the trial court received another expert report
which had been drawn up at the public prosecutor's request. A hearing
of 26 November 1999 was adjourned despite the applicant's
presence.
- A
hearing listed for 21 January 2000 was adjourned due to the
applicant's request for exclusion of the public prosecutor. This
request was dismissed at a later date.
-
The proceedings resumed with hearings of 1 and 13 March 2000, at
which the trial court examined the experts and witnesses.
-
On 22 March 2000 the trial court convicted the applicant and
sentenced him to one year's imprisonment. On 18 September 2000 the
applicant appealed.
-
At a public hearing held on 21 February 2001 the Appeal Court quashed
this decision and remitted the case for a renewed examination. It
ruled that the lower court had erred in ordering an alternative
expert report, given that it had not established that the existing
expert reports were inconsistent. It accordingly instructed the trial
court to arrange a confrontation of all the experts and to reassess
the evidence so as to determine whether the applicant had negligently
switched off the power supply of the wrong installation.
-
On 7 May 2001 the applicant informed the trial court that he had been
admitted to hospital and requested an adjournment. On 9 May 2001 the
Gostivar Hospital attested to the applicant's poor health.
-
On 29 May 2001 the applicant's representative unsuccessfully
requested the postponement of a hearing fixed for 31 May 2001. It was
held on the scheduled date in the applicant's presence.
-
On 1 June 2001 the trial court ordered the applicant to undergo a
medical examination so as to determine his capacity to defend himself
in court. It also requested that the experts adjust their reports in
compliance with the Appeal Court's instruction. A hearing of 13 June
2001 was adjourned due to the experts' absence.
-
On 11 July 2001 the applicant's representative unsuccessfully
requested to postpone a hearing listed for 12 July 2001. Despite the
applicant's presence, the hearing was adjourned on account of the
experts' absence.
-
On 19 July 2001 the applicant challenged the trial judge, the trial
court's President and all judges of that court. That request was
dismissed by decisions of 24 and 31 July 2001.
-
The Government stated that hearings listed for 7 and
12 September 2001 were adjourned at the applicant's
request. A hearing of 14 September 2001 was postponed
because of the armed conflict that broke out in the former Yugoslav
Republic of Macedonia in 2001. No evidence was submitted in support
of these statements.
-
On 10 October 2001 the trial court found the applicant guilty and
sentenced him to one year's imprisonment suspended for two years.
-
On 13 February 2002 the Appeal Court overturned that decision
dismissing the charges because the prosecution had become
time-barred. It held that over ten years had elapsed from 19 October
1991, the date when the offence had been committed, without a final
decision having been given.
-
During the proceedings, the applicant lodged three objections
(поплака)
(June 1994, February and June 1995) in which he complained
about the conduct of the trial and the frequent change of the trial
judges.
-
It transpires that six trial judges decided the applicant's case
throughout the impugned proceedings.
THE LAW
I. ALLEGED VIOLATION OF THE “REASONABLE TIME”
REQUIREMENT UNDER ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention,
inter alia, that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in this Article, the relevant part of which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. The applicant's “victim” status
-
The Government submitted that, regard being had to the outcome of the
proceedings, the applicant had lost his victim status given that no
penalty had been imposed and no damage had been incurred as a result
of the impugned proceedings. They further maintained that the
dismissal of the criminal charges because of the time-bar was to be
considered as compensation for the excessive length of the
proceedings. They further maintained that he had contributed to the
length of the proceedings.
-
The applicant disagreed with the Government's objection.
-
As to the question of whether the applicant may claim to be a victim
of a violation of Article 6 § 1 of the Convention as regards the
length of the impugned proceedings, the Court reiterates that “a
decision or measure favourable to the applicant is not in principle
sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention” (see Sali v. the former Yugoslav Republic
of Macedonia, no. 14349/03, § 33, 5 July
2007).
-
In the instant case, the Court finds that the Appeal Court did not
make any reference to the length of the proceedings. It only
confirmed that over ten years had elapsed from the day the crime had
been committed, a fact that rendered the prosecution time-barred. It
cannot therefore be accepted that the discontinuance of prosecution
because of the time-bar constituted any acknowledgment, whether
explicit or implicit, on the part of the national authorities that
the applicant's case had not been heard within a reasonable time
(see, mutatis mutandis, Eckle v. Germany, judgment of
15 July 1982, Series A no. 51, § 66). Moreover, the
Court has already determined the reasonableness of the length of
proceedings which were discontinued because the action had become
time-barred (see Stamoulakatos v. Greece (dec.), no. 42155/98,
9 November 1999).
-
In conclusion, the Court holds that the applicant may claim to be a
“victim” for the purposes of Article 34 of the
Convention.
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
(a) The parties' submissions
- The
Government submitted that the period which elapsed before the entry
into force of the Convention in respect of the former Yugoslav
Republic of Macedonia should not be taken into consideration.
-
They further maintained that the case had been of a complex nature
given the fact that it required numerous expert examinations and that
extensive evidence had to be examined to establish the facts. The
armed conflict of 2001 had also affected the length of the
proceedings.
-
As regards the applicant's conduct, the Government submitted that he
had considerably contributed to the length of the impugned
proceedings: he had failed to attend some of the hearings despite
being summoned properly; he had frequently changed his
representative; he had challenged judges; he had not requested the
court to expedite the proceedings; and he had availed himself of an
appeal remedy on four occasions.
-
Concerning the conduct of the domestic courts, the Government argued
that, despite the complexity of the case, they had decided the
applicant's case with due diligence and the scheduled hearings were
held without any interruptions or delays. They concluded that the
impugned proceedings had been composed of a number of separate sets
and noted that eight decisions had been given throughout.
- The
applicant contested the Government's arguments, maintaining that no
delays were imputable to him. He pointed out that the Government did
not present any evidence that any hearing had been adjourned due to
his absence or at his request. He further argued that none of the
expert reports had been drawn up upon his request; that he had
challenged a trial court judge only once; that six successive trial
court judges had been assigned to deal with his case, a fact which
affected the length of the proceedings; and that it was his right to
avail himself of the available remedies in his defence.
(b) The Court's assessment
-
As stated in the Court's case-law, a “charge”, for the
purposes of Article 6 § 1, may in general be defined as “the
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”.
This may occur on a date prior to the case coming before the trial
court, such as the date of arrest, the date on which the person
concerned was officially notified that he was to be prosecuted or the
date on which the preliminary investigations were opened (see
Šubinski v. Slovenia, no. 19611/04, § 62,
18 January 2007 and the references cited therein).
- Turning
to the present case, the Court observes that on 24 March 1992
preliminary investigations were opened against the applicant and that
on 18 June 1992, the public prosecutor lodged the indictment with the
trial court. In the circumstances of the case, the Court considers
24 March 1992 as a date on which the applicant was “charged”
for the purposes of Article 6 of the Convention. As
argued by the Government, the period which falls within its
temporal jurisdiction began on 10 April 1997, when the recognition by
the former Yugoslav Republic of Macedonia of the right of individual
petition took effect (see Dika v. the former Yugoslav
Republic of Macedonia, no. 13270/02, § 51, 31 May
2007 and the references cited therein).
- In
assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings on 10
April 1997 (see Milošević v. the former Yugoslav
Republic of Macedonia, no. 15056/02, § 21, 20
April 2006; Styranowski v. Poland, no. 28616/95, § 46,
ECHR 1998-VIII; and Foti and Others v. Italy, judgment
of 10 December 1982, Series A no. 56, p. 18, § 53). In
this respect, the Court notes that - at the time of the entry into
force of the Convention in respect of the former Yugoslav Republic of
Macedonia - the proceedings had lasted five years and seventeen days
for two court levels.
- For
the reasons detailed in the Arsov case, which likewise apply
to this case (see, mutatis mutandis, Arsov v. the
former Yugoslav Republic of Macedonia, no. 44208/02, § 42,
19 October 2006), the Court finds that the proceedings complained of
should be considered as one single procedure. The proceedings ended
on 13 February 2002 when the Appeal Court dismissed the criminal
charges against the applicant because of the time-bar. They therefore
lasted nearly ten years of which over four years and ten months fall
to be examined by the Court for two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- It
finds that some complexity arose from the need to request expert
reports, but this cannot in itself explain the length of the
proceedings. Moreover, the expert was working in the context of
judicial proceedings, supervised by a judge, who remained responsible
for the preparation and the speedy conduct of the trial (see
Stojanov, cited above, § 60, and Scopelliti v.
Italy, judgment of 23 November 1993, Series A no. 278, § 23).
The procedural steps (see paragraphs 20-25 above) taken during the
armed conflict in 2001 suggest that the latter did not affect
considerably the length of the proceedings.
- As to the applicant's conduct, while he was
responsible for the adjournment of the hearings of 21 January 2000
and 7 May 2001, the latter on account of his health, the Court finds
unsubstantiated the Government's argument that several other
adjournments (see paragraphs 13 and 24 above) were imputable to him.
Neither is it persuaded that the applicant's challenge of judges
added to the length of the proceedings, given that it was decided in
a speedy manner (see paragraph 23 above). His unsuccessful requests
for postponement (see paragraphs 20 and 22 above) did not affect the
length of the proceedings, given that those hearings were held as
scheduled. The applicant's three objections (see paragraph 27 above)
repudiate the Government's argument that he had failed to undertake
any measure to expedite the proceedings. In any case, the Court notes
that the Government have already acknowledged the lack of an
effective remedy in respect of the length of proceedings under the
then applicable rules (see Kostovska v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 52, 15 June
2006). Finally, the applicant cannot be blamed for taking full
advantage of the remedies afforded by national law in the defence of
his interests (see Kesyan v. Russia, no. 36496/02, § 55,
19 October 2006 and Rizova v. the former Yugoslav Republic of
Macedonia, no. 41228/02, § 50, 6 July 2006).
- On
the other hand, the Court considers that significant delays are
attributable to the authorities. Over two and a half years elapsed
between the hearings of 24 April 1997 and 26 November 1999 (see
paragraphs 13 and 14 above). Three remittal orders were given during
the proceedings. In this context, the Court reiterates that although
it is not in a position to analyse the juridical quality of the
case-law of the domestic courts, it considers that, since the
remittal of cases for re-examination is usually ordered as a result
of errors committed by lower courts, the repetition of such orders
within one set of proceedings discloses a serious deficiency in the
judicial system (see Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003). Moreover, it took nearly five
years, of which nearly three years fall within the period under
consideration, for the trial court to decide the applicant's case
even though it had already been reconsidered on two occasions (see
paragraphs 11 and 17 above). The frequent change of the trial judges
also contributed to the length of the proceedings. Finally, the
charges were ultimately dismissed more than ten years after the date
on which the offence had been committed.
- Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 of the
Convention arguing that the proceedings had been degrading and that
the courts had tolerated breaches of discipline in the courtroom by
aggrieved persons who allegedly insulted him.
- Relying
on Article 6 §§ 1 and 3 of the Convention, the applicant
complained that he had not been given a fair trial, alleging that the
trial court had misinterpreted his statements and had drawn up the
minutes incorrectly; that he had not been informed in a timely
fashion about the hearings or he had been afforded free legal aid;
that he had been prevented from examining witnesses; and that the
court had been biased.
- In
the second reply to the Government's observations received by the
Court on 27 October 2006, he further complained under Article 34 of
the Convention that he had been denied access to the file after the
case had been communicated to the respondent Government.
- The
Court notes that the criminal charges against the applicant were
dismissed on appeal because the prosecution had become time-barred.
It considers that in such a situation the applicant can no longer
claim to be a victim of a violation of the right to a
fair trial (see Stamoulakatos, cited above).
- As
to his complaints under Articles 3 and 34 of the Convention, the
Court finds no appearance of a violation of the rights guaranteed by
these provisions on the basis of the information contained in the
case-file.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
a letter of 15 February 2006, after the length-of-the-proceedings
complaint had been communicated to the respondent Government, the
Court invited the applicant to submit his claims for just
satisfaction by 31 March 2006. He did not submit any such
claim within the specified time-limit.
- In
these circumstances, the Court makes no award under Article 41 of the
Convention (see Smirnov v. Russia, no. 71362/01,
§ 70, 7 June 2007, ECHR 2007, and Timofeyev v.
Russia, no. 58263/00, § 52, 23 October 2003).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
