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FIFTH
SECTION
CASE OF ZIBERI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 27866/02)
JUDGMENT
STRASBOURG
5 July
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 Ziberi 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 K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27866/02) 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 Zejnula Ziberi (“the applicant”),
on 19 June 2002.
- The
applicant was represented by Mr O. Kadriu, a lawyer practising in
Skopje. 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Strelci.
- He
worked in a mine “Tajmiste” which was affiliated with the
then socially-owned enterprise (општествено
претпријатие)
Rudnici i Zelezarnica Skopje (“the employer”). In
1987 the applicant was seriously injured in an accident. Following
that incident, he unsuccessfully requested a disability pension.
- On
1 June 1992 the applicant submitted a request to the employer for the
termination of the employment. On 4 June 1992 the employer granted
his request and adopted a dismissal decision. The dismissal became
effective as of 15 June 1992. On 2 November 1992 the applicant
requested the employer to reinstate him.
- On
23 November 1992 the applicant brought a civil action for annulment
of the dismissal against the employer. He also claimed reinstatement.
- On
23 December 1992 the then Kičevo Municipal Court (Општински
суд) upheld the applicant's claim. On 21
April 1993 the then Skopje District Court (Окружен
суд) quashed the decision and instructed
the lower court to determine whether the applicant had complied with
the time-limit for the submission of his claim.
- At
a hearing of 4 June 1993, the trial court examined three witnesses
proposed by the applicant. On 23 December 1993 the composition of the
panel of judges changed. As the trial restarted, the court
re-examined the witnesses.
-
On 30 June 1993 the Kičevo Municipal Court dismissed the
applicant's claim as ill-founded. On 24 November 1993 the Skopje
District Court set aside that decision and remitted the case for a
fresh consideration. It further instructed the lower court to
determine whether the applicant had objected to the dismissal
decision before the executive board of the employer (“the
executive board”) and whether he had complied with the
statutory time-limit to institute court proceedings.
-
At a hearing of 28 February 1994 the composition of the panel of
judges changed again.
-
On the same date, the Kičevo Municipal Court upheld the
applicant's claim. On 18 May 1994 the District Court upheld the
employer's appeal and overturned the decision rejecting the
applicant's claim as time barred. On 27 June 1995 the Supreme
Court quashed the decision and referred the case back to the District
Court. On 7 December 1995 the latter set aside the first instance
decision to determine whether the applicant had been served with the
dismissal decision.
-
On 4 March 1996 the trial court rejected as inadmissible the
applicant's claim as he had failed to object to the dismissal
decision before the executive board. On 10 September 1996 the Bitola
Court of Appeal (Апелационен
суд) quashed that decision as it
remained undetermined whether the dismissal decision had been
served on the applicant.
-
On 25 November 1996 the Kičevo Court of First Instance (Основен
суд) upheld the applicant's claim and
annulled the dismissal decision. It found that the applicant had not
been served with the dismissal decision. On 19 May 1997 the Bitola
Court of Appeal upheld the employer's appeal, quashed the decision
and ordered a retrial.
-
The trial court adjourned a hearing fixed for 25 September 1997
because of the witnesses' absence. At a hearing of 3 November 1997,
the trial court heard in evidence the witnesses proposed by the
applicant. On the same date, the court rejected the applicant's claim
as inadmissible. The decision was repealed by the appellate court on
30 January 1998.
-
The trial court adjourned a hearing fixed for 18 May 1998 because of
the employer's absence. On 3 June 1998 it allowed the applicant's
request to order the employer to submit his employment file.
-
On 12 June 1998 the first-instance court partially upheld the
applicant's claim and annulled the dismissal decision. It found that
the latter had not been served on the applicant nor had he received
in this respect any other notification. On 8 October 1998 the
appellate court upheld the parties' appeals and quashed the decision.
-
The court postponed a hearing fixed for 24 November 1998 as the
applicant had not been properly summoned.
- A
hearing of 24 December 1998 was adjourned at the employer's request.
-
On 11 January 1999 the first-instance court upheld the applicant's
claim and annulled the dismissal decision. It further ordered the
employer to reinstate the applicant to a post equal to his
qualifications. On 22 June 1999 the Bitola Court of Appeal upheld the
employer's appeal and remitted the case for re-examination.
-
As indicated by the Government, on 31 August 1999 the applicant
submitted to the trial court his concluding remarks in writing. The
court adjourned a hearing of 2 September 1999 to communicate to the
applicant real evidence that had been meanwhile submitted by the
employer.
-
On 20 September 1999 the first-instance court upheld the applicant's
claim. It annulled the dismissal decision and ordered the employer to
reinstate the applicant. On 21 December 1999 the appellate court
upheld the employer's appeal and set aside that decision.
-
Hearings of 6 April and 14 July 2000 were adjourned because the
employer was not properly summoned. On 18 May 2000 the President of
the Court of First Instance granted the employer's request for
removal of the trial judge from the case. A hearing of 15 September
2000 was postponed at the applicant's request. At a hearing of 23
October 2000 the court examined two witnesses proposed by the
applicant; read out other evidence; and heard the applicant.
Following the concluding remarks, the court gave its decision
dismissing the applicant's claim. It established that he had been
served with the dismissal decision between 4 and 10 June 1992 and
that he had failed to object to it before the executive board. It
further found that his subsequent request for reinstatement could not
have been considered as an objection nor had it been lodged in time.
It concluded that the applicant had been dismissed on his request;
that he had not come to work after 15 June 1992 and that he had
received the discharge annuity (отпремнина).
-
On 7 June 2001 the appellate court dismissed the applicant's appeal
finding no grounds to depart from the reasons given by the lower
court.
-
On 20 March 2002 the Supreme Court dismissed the applicant's appeal
on points of law (ревизија)
as ill-founded.
II. RELEVANT DOMESTIC LAW
-
Section 10 of the then Civil Proceedings Act (Закон
за парничната
постапка)
(“the Act”) provided that it was incumbent upon the court
to undertake to conduct the proceedings without undue delay and
economically and to inhibit any attempt of abuse of the rights
afforded to the parties concerned.
- Section
300 (1) of the Act provided that if a hearing was adjourned, the new
hearing would be held before the same panel, if possible. Section 300
(3) of the Act provided that, inter alia, if a hearing was
held before differently composed panel, the trial should start again.
- Section
408 of the Act provided, inter alia, that the court should
take into consideration the necessity of urgent settlement of
employment disputes.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged under Article 6 § 1 of the Convention that the
proceedings were unfair, complaining, in particular, that the
national courts erroneously established the facts and decided in
arbitrary manner. He further complained that the length of the
proceedings were incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention, which provision,
in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Alleged unfairness of the proceedings
-
In so far as the applicant's complaint may be understood to concern
the assessment of evidence and the result of the proceedings before
the domestic courts, the Court reiterates that it is for the national
courts to establish and assess the facts, to determine the probative
value of evidence and to apply the national law. It is not the
function of the Court to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, 29, ECHR 1999 I).
Moreover, while Article 6 of the Convention guarantees the right to a
fair hearing, it does not lay down any rules on the admissibility of
evidence or the way it should be assessed, which are therefore
primarily matters for regulation by national law and the national
courts (see Schenk v. Switzerland, judgment of 12 July 1988,
Series A no. 140, p. 29, §§ 45-46).
-
In the present case, the Court notes that the applicant was given
sufficient opportunity to present his case, under conditions that did
not place him at a substantial disadvantage vis-à-vis
his opponent (see, mutatis mutandis, Stran Greek Refineries and
Stratis Andreadis judgment of 9 December 1994, Series A Vol.
301, p. 81, § 46). However, these arguments of the applicant,
while duly taken into account by the domestic courts, were
nevertheless rejected on the basis of reasoning which appears
consistent and devoid of any arbitrariness.
-
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
2. The length-of-proceedings complaint
- The
Government did not dispute the admissibility of this complaint
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds 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 stated that the national courts had been required to examine
complex issues of a factual nature. They had to establish when and
whether the applicant had been served with the dismissal decision;
when and whether he had objected to it; and whether he had sought
judicial protection in compliance with the statutory time-limits. In
absence of real evidence, the courts had been required to examine
several witnesses, to hear the applicant and to consider other
evidence.
-
They further stated that the applicant had contributed to the length
of the proceedings by providing inconsistent statements concerning
the disputed facts and by requesting the court to examine seven
witnesses and other evidence.
-
The Government further submitted that the national courts had
proceeded with the case with due diligence and that they had
scheduled the hearings in short intervals without any delays. They
had been in this respect governed by the urgent nature of the
dispute.
-
The applicant disputed the Government's arguments arguing that he did
not contribute to the length of the proceedings as their speedy
termination was in his interest. He further maintained it had taken
eleven years for the national courts to decide his case despite its
urgent nature. In addition, he submitted that the appeal court could
have decided the case by itself, instead of constantly remitting it
back for reconsideration which added significantly to the length.
(b) The Court's assessment
- The
Court notes that the proceedings commenced on
23 November 1992 when the applicant had brought his
civil action for annulment of the dismissal decision. However, as
argued by the Government, the period which falls within the Court's
jurisdiction began on 10 April 1997, after the Convention entered
into force in respect of the former Yugoslav Republic of Macedonia
(see Lickov v. the former Yugoslav Republic of Macedonia, no.
38202/02, § 21, 28 September 2006).
- 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 Styranowski v. Poland, no. 28616/95,
§ 46, ECHR 1998-VIII; Foti and Others v. Italy, judgment
of 10 December 1982, Series A no. 56, p. 18, § 53). In this
connection 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 four years, four months and
seventeen days for three court levels. During this period, the case
was reconsidered on five occasions. The trial court's decision of
25 November 1996 was the last decision given within this
period.
- The
proceedings ended on 20 March 2002 when the Supreme Court had
dismissed the applicant's appeal on points of law. They therefore
lasted nine years three months and twenty-seven days of which four
years, eleven months and ten days fall to be examined by the Court
for three 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 and what
was at stake for the applicant in the dispute (see Markoski v. the
former Yugoslav Republic of Macedonia, no. 22928/03, § 32,
2 November 2006, and the references cited therein).
- The
Court considers that the case was not of a complex nature. It can
accept that its complexity increased because of the lack of evidence
in relation to the applicant's dismissal which cannot however of
itself explain the length of the proceedings.
45. The Court further considers that no periods of delay are
attributable to the applicant: the adjournment of one hearing (see
paragraph 23 above) did not add considerably to the length of the
proceedings. As regards his requests for examination of witnesses and
other evidence, the Court notes that it is for the national courts to
assess in each and every situation whether such requests are
justified and necessary for the proper administration of justice (see
Rizova v. the former Yugoslav Republic of Macedonia, no.
41228/02, § 50, 6 July 2006). In addition, it has been the
Court's constant approach that an applicant cannot be blamed for
taking full advantage of the resources afforded by national law in
the defence of his interests (see Kesyan v. Russia, no.
36496/02, § 55, 19 October 2006). Finally, it was the judge
who remained responsible for the preparation and the speedy conduct
of the trial (see, mutatis mutandis, Scopelliti v. Italy,
judgment of 23 November 1993, Series A no. 278, § 23).
-
The Court considers that the protracted length of the proceedings was
due to the repeated re-examination of the case. During the time which
falls within its competence ratione temporis, the case was
reconsidered on five occasions. The domestic courts thus cannot be
said to have been inactive. However, although the Court is not in a
position to analyse the 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 Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6
September 2005; Wierciszewska v. Poland, no. 41431/98, §
46, 25 November 2003). In this context, the Court recalls that it is
for the Contracting States to organise their legal systems in such a
way that their courts can guarantee everyone's right to obtain a
final decision on disputes relating to civil rights and obligations
within a reasonable time (see Kostovska v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 41, 15 June
2006; Muti v. Italy, judgment of 23 March 1994, Series A
no. 281 C, § 15).
- Moreover,
the Court notes that the domestic law (see section 408 of the Civil
Proceedings Act above) and the Court's jurisprudence (see, mutatis
mutandis, Ruotolo v. Italy, judgment of 27 February 1992,
Series A no. 230-D, § 17; Obermeier v. Austria, judgment
of 28 June 1990, Series A no. 179, § 72) required
employment-related disputes to be conducted with a special diligence.
- 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 of
Article 6 § 1 of the Convention.
- There
has accordingly been a breach of that provision.
II. 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.”
A. Damage
- The
applicant claimed 100,000 (EUR) in respect of pecuniary damage. He
further claimed non-pecuniary damage for the anguish and debasement
suffered as a result of the length of the proceedings. He left the
amount of the award to the Court's discretion.
- The
Government contested these claims as unsubstantiated arguing that
there was no causal link between the alleged violation and the damage
claimed. They invited the Court to consider that the eventual finding
of a violation would constitute in itself sufficient compensation for
any damage in the present case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. Moreover, that claim is
unsubstantiated as the applicant did not provide any document
supporting it. The Court therefore rejects this claim. On the other
hand, the applicant must have sustained non-pecuniary damage. Ruling
on an equitable basis, the Court awards him EUR 500 under that head.
B. Costs and expenses
- The
applicant did not seek reimbursement for costs and expenses.
Accordingly, the Court does not award any sum in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, which sum is to be converted into the national
currency of the respondent State at the rate applicable on the date
of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
