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 PECEVI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 21839/03)
JUDGMENT
STRASBOURG
6
November 2008
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 Pecevi v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21839/03) 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 two Macedonian nationals,
Ms Trajanka Peceva and Mr Trajče
Pecev (“the applicants”), on 9 June 2003.
- The
applicants were represented by Ms T. Dedejska, a lawyer practising in
Strumica. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
3 July 2006 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1963 and 1968 respectively, and live in
Strumica.
- By
a court decision of 1985, confirmed by the Appeal and Supreme Courts’
decisions of 1986 and 1987 respectively, the applicants were
established as successors in title to a property which had belonged
to their late grandfather. On 31 March 1992 the then Radoviš
Municipal Court (“the first-instance court”), in
non-contentious proceedings, accepted the applicants’ request
for physical division of the property submitted in 1987 and
determined the plots of land to be transferred into their actual
possession (во
сопственост
и владение).
On 14 September 1993 the then Štip District Court ruled partly
in favour of both parties and overturned the lower court’s
decision only in respect of part of the property for which it ordered
a public sale.
- On
27 December 1993 the first-instance court granted the applicants’
request for enforcement of the above decisions submitted on 20
December 1993. Under the order, the debtor was obliged to transfer
into the applicants’ actual possession the plots of land as
specified in those decisions. It further ordered a public sale of the
remaining property.
- On
26 October 1994 the court inspected the site together with a land
expert. Enforcement was adjourned since the debtor had applied for a
court summons. The court re-scheduled enforcement for 3 November
1994. It also ordered the applicants to make a down-payment in
respect of the costs of enforcement (Macedonian denars 2,500 (MKD)).
The debtor was ordered to reimburse those costs within three days
under threat of forcible enforcement.
- A
payment slip of the same date confirmed that the court paid that
amount to the court officers involved in the above on-site
inspection.
- On
2 November 1994 the debtor objected to the order. He argued that the
court decision of 31 March 1992 was unenforceable since he had not
been served with the appeal court’s decision given in those
proceedings. On 7 November 1994 the applicants lodged their
submissions in reply.
- On
1 November 2000 the first-instance court dismissed the debtor’s
objection.
- On
8 November 2000 that court ordered the applicants to pay MKD 4,500
for the costs of enforcement. These included MKD 2,500 for an on-site
inspection and MKD 2,000 for interest. It was also indicated that in
case of non-compliance enforcement might be stayed.
- A
receipt slip of 17 November 2000 confirmed the payment of the above
amount.
- After
the Ministry of Justice had requested information about progress in
the applicants’ case, on 20 July 2001 the first-instance court
issued a letter in which it stated that enforcement would resume with
an expert identification of the plots of land.
- On
29 August 2001 the Štip Court of Appeal allowed the debtor’s
appeal against the first-instance court’s decision of 1
November 2000 and remitted the case for re-examination.
- On
9 July 2003 the first-instance court dismissed the debtor’s
objection, finding that he had been served with the appeal court’s
decision in October or November 1993. It also rejected the
applicants’ request for public sale of part of the property as
that same issue should have been decided in the non-contentious
proceedings initiated in 1987. On 26 January 2004 the Štip
Court of Appeal confirmed that decision.
- On
16 April 2004 the court inspected the site. After an expert had
identified the plots of land, the court transferred them into the
applicants’ possession and ordered the debtor to refrain from
disturbing the latter. It also ordered the debtor to pay MKD 9,750 in
respect of the costs of enforcement. The applicants’ lawyer
requested reimbursement of the legal fees which she would specify
subsequently.
- On
4 September 2006 the court handed (на
рака) to
the applicants the amount described above. As stated in the minutes,
the applicants confirmed receipt of the money and requested
continuation of enforcement in respect of the remaining costs.
- Between
October 2000 and June 2006, the applicants complained several times
to the President of the first-instance court, the Ministry of
Justice, the Republican Judicial Council and the Ombudsman with a
view to speeding up the proceedings.
II. RELEVANT DOMESTIC LAW
- Section
9 of the Enforcement Proceedings Act (“the Act”), valid
at that time, required the court to conduct enforcement proceedings
without any delay.
- Section
32 §§ 2 and 3 of the Act required a creditor to make an
advance payment of the costs of enforcement within the term
prescribed by the court. In case of non-compliance, the court had
jurisdiction to suspend the proceedings. Under the same provision, a
debtor was required to reimburse the costs of enforcement incurred by
the creditor at the latter’s request, which could be lodged
within thirty days of the conclusion of the enforcement proceedings
(section 32 §§ 5 and 7).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the enforcement proceedings
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government did not raise any objection as to the admissibility of the
application.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The Government submitted that the period which had
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 stated that the case had required
examination of complex factual issues, including the circumstances
complained of by the debtor (see paragraph 9 above). They argued that
the applicants had contributed considerably to the length of the
proceedings by failing to make the down-payment of the costs of
enforcement as required by the court’s order of 26 October
1994. Those costs had been paid only on 17 November 2000 (see
paragraphs 7 and 12 above). Under such circumstances, the courts were
entitled to stay the proceedings. As to the conduct of the national
courts, the Government conceded that the proceedings had lasted too
long. The courts’ clear inactivity between 1994 and 2000 and
between 2001 and 2003 had primarily been due to the applicants’
failure to pay the costs of enforcement and their lack of interest in
pursuing the case, even though they had been represented by a lawyer
of their own choosing. They maintained that the enforcement had been
concluded on 16 April 2004.
- The
applicants contested the Government’s arguments. They
maintained that they had made the down-payment of the costs in good
time. That was supported by the payment slip (see paragraph 8 above),
which could have been issued only if they had paid those costs in
advance. They submitted that the proceedings had not yet ended, since
the court had not decided their claims in respect of the remaining
costs and expenses. Their requests for the proceedings to be
expedited contradicted the Government’s allegations about their
inactivity.
2. The Court’s assessment
- The
Court notes that the enforcement proceedings started on 20 December
1993 when the applicants requested the first-instance court to
enforce the courts’ decisions given in the proceedings on the
merits of their claim. However, the period which falls within the
Court’s jurisdiction did not begin on that date, but on 10
April 1997, after the Convention entered into force in respect of the
former Yugoslav Republic of Macedonia (see Horvat v. Croatia,
no. 51585/99, § 50, ECHR 2001-VIII).
- The
Court further observes that, in order to determine the reasonableness
of the delay in question, regard must also be had to the state of the
case on the date of ratification (see, mutatis mutandis,
Styranowski v. Poland, judgment of 30 October 1998, Reports
of Judgments and Decisions 1998 VIII, § 46), and
finds that on 10 April 1997 the enforcement proceedings had lasted
over three years and three months at one level of jurisdiction.
- The
Court notes that the parties disagreed as to whether the proceedings
had ended. The Government asserted that the proceedings had ended on
16 April 2004 (see paragraph 16 above) and the applicants asserted
that they were still pending, since their claim for costs and
expenses had not been satisfied in full. In the light of the material
in its possession, the Court considers that the enforcement
proceedings must be regarded as having ended on 4 September 2006 when
the first-instance court reimbursed the applicants the costs of
enforcement as established by its decision of 16 April 2004. That was
the last activity taken in the course of the proceedings which was
supported by documentary evidence. The Court cannot accept the
applicants’ assertion that the proceedings are still pending
since no evidence has been presented as to whether, when and in what
form they requested the first-instance court to determine their claim
for the alleged remaining costs and expenses. The enforcement
proceedings therefore lasted over twelve years and eight months of
which nearly nine years and five months fall within the Court’s
temporal jurisdiction at two levels of jurisdiction.
- The
Court reiterates that Article 6 § 1 of the Convention requires
that all stages of legal proceedings for the “determination of
... civil rights and obligations”, not excluding stages
subsequent to judgment on the merits, be completed within a
reasonable time (see Miltenovic v. the former Yugoslav Republic of
Macedonia (dec.), no. 26615/02, 19 June 2006). In addition, it
considers that the State has a positive obligation to organise a
system for enforcement of judgments that is effective both in law and
in practice and ensures their enforcement without any undue delay. A
delay in the execution of a judgment may be justified in particular
circumstances. However, the delay may not be such as to impair the
essence of the right protected under Article 6 § 1
(see Fuklev v. Ukraine, no. 71186/01, §§ 83
and 84, 7 June 2005).
- Under
the Court’s case law, 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 Atanasovic and Others
v. the former Yugoslav Republic of Macedonia, no. 13886/02,
§ 33, 22 December 2005).
- The
Court considers that the case was not of a complex nature.
- It
further finds that no delays were imputable to the applicants in the
period under consideration after 8 November 2000 (see paragraph 11
above). On the other hand, it draws attention to the fact that no
evidence has been provided to attest to any particular diligence on
the applicants’ part during the six-year gap between November
1994 and November 2000, of which three years are within the Court’s
competence ratione temporis. Such inactivity is surprising,
having regard to the fact that, as the Government pointed out, the
applicants were represented by a lawyer of their own choosing. Their
motions to expedite the proceedings post-dated that period (see
paragraph 18 above). However, such requests, even if made within the
above-mentioned gap, could not have expedited the proceedings (see
Atanasovic and Others, cited above, § 31).
- Having regard to the material submitted to it, the
Court considers that this was the main delay in the proceedings. It
is not in doubt that during that time the applicants and the
first-instance court were inactive. The Government maintained that
the courts’ inactivity had resulted from the applicants’
failure to pay the costs of enforcement. In this connection, the
Court observes that on 26 October 1994 the first-instance court
ordered the applicants to make an advance payment of these costs. The
only proof of payment was dated 17 November 2000 (see paragraph 12
above). In the absence of any evidence, the Court considers the
applicants’ arguments that these costs had been paid before
that date unsubstantiated. However, the Court is not persuaded that
this blatant failure was the reason for the first-instance court’s
inactivity. Nor did the first-instance court, in its reply to the
applicants’ request for the proceedings to be expedited, put
forward that failure as justification for the delay (see paragraph 13
above). In this connection, it notes that the first-instance court
dismissed the debtor’s objection of 2 November 1994 on 1
November 2000 (see paragraph 10 above). At that time, the applicants
had not yet complied with the court’s payment order. It was
only on 8 November 2000, which was after that decision, that the
first-instance court again requested the applicants to pay the costs
of enforcement together with interest (see paragraph 11 above). In
addition, the first-instance court, although empowered to do so under
section 32 § 3 of the Act, did not stay the proceedings on that
ground and did not issue any warning to the parties.
Furthermore,
the Court observes that it took over one year and ten months for the
first-instance court to re-consider the debtor’s objection (see
paragraphs 14 and 15 above). Finally, it took nearly two years and
five months for that court to secure the payment of the costs of
enforcement by the debtor (see paragraphs 16 and 17 above). Having
regard to the time already elapsed by then, the Court does not
consider those periods to be compatible with the statutory
requirement of concluding enforcement proceedings without delay (see
paragraph 19 above).
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the enforcement proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
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
- In
respect of pecuniary damage, the applicants claimed 25 euros (EUR)
per square metre or decametre (different parameters were given in the
Macedonian and English versions of their observations) of the land as
loss of profit from 1987 onwards. They also claimed EUR 10,000 for
each applicant in respect of non-pecuniary damage.
- The
Government said these claims were unsubstantiated. They argued that
there was no causal link between the alleged violation and the
pecuniary damage claimed. By making that claim, the applicants were
in fact asking the Court to decide their case as brought before the
national courts.
- The
Court notes that, while there may be a causal link between the
violation found and the pecuniary damage alleged, the applicants
failed to substantiate their claim under this head; it therefore
rejects it. On the other hand, the Court considers that the
applicants must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards the applicants jointly the sum of EUR
2,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicants also claimed EUR 4,000 for legal fees and MKD 85,420 for
costs without specifying whether these had been incurred domestically
or before this Court. Apart from the fee note on MKD 94,270
concerning the costs incurred before the domestic courts, no other
document, invoice or any other particular was provided in support of
these claims.
- The
Government maintained that these claims were unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Gjozev v.
the former Yugoslav Republic of Macedonia, no.
14260/03, § 63, 19 June 2008 and Kostovska,
cited above, § 62). The Court notes that the applicants did not
submit any supporting documents or particulars to substantiate their
claim in respect of their lawyer’s fees. As regards the costs,
even assuming that they concerned the proceedings before the domestic
courts, the Court notes that such costs were not incurred in order to
seek through the domestic legal order prevention and redress of the
alleged violation complained of before the Court (see Milošević
v. the former Yugoslav Republic of Macedonia,
no. 15056/02, § 34, 20 April 2006). The Court
therefore makes no award under this head.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
