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FIFTH
SECTION
CASE OF PARIZOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 14258/03)
JUDGMENT
STRASBOURG
7 February 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 Parizov v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger, judges,
and Claudia Westerdiek, Section
Registrar.
Having
deliberated in private on 15 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14258/03) 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 a
Macedonian national, Mr Sterija Parizov (“the applicant”),
on 11 April 2003.
- The
applicant was represented by Mr N. Zendelov, a lawyer practising in
Štip. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
7 May 2007 the Court
decided to give notice of the application to the Government. 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
A. The circumstances of the case
- The
applicant was born in 1936 and lives in Štip.
- On
17 November 1986 the applicant and three other persons instituted
civil proceedings before the then Štip Municipal Court
(Општински
Суд Штип)
for annulment of a care agreement (“the agreement”)
(договор
за доживотна
издршка) concluded
on 7 December 1979 between the applicant's late father and his
step-mother (“the defendant”). They maintained that the
applicant's late father had been in a fit condition and that he had
sufficient financial means to take care of himself and that,
accordingly, there had been no need for the agreement under which,
the defendant had been granted four hundred golden liras, a priceless
ancient icon and a land.
- On
25 June 1987 the Štip Municipal Court partially upheld the
applicant's claim and annulled the agreement. It declared, inter
alia, that the icon would be included in the applicant's late
father's inheritance, but it dismissed the claim concerning the
golden liras. That decision was served on the applicant on 3 March
1988.
- On
14 March 1988 both parties appealed.
- On
29 September 1989 the then Štip District Court (Окружен
суд) dismissed the appeals and upheld
the lower court's decision.
- On
25 September 1990 the Supreme Court upheld the applicant's appeal on
points of law (ревизија)
submitted on 19 December 1989. It remitted the case for a
renewed consideration since the first-instance court had not given
sufficient reasons for its decision.
-
The proceedings resumed on 19 June 1991. Of four hearings fixed
before the first-instance court, none was postponed upon the
applicant's request.
-
On 14 October 1992 the Štip Municipal Court gave the same
decision as on 25 June 1987 in which it established that the
applicant's father had been amongst the richest people in his
village; that he had been in a fit condition and that, by entering
into the agreement, the defendant had acquired considerable interest
(значителна
имотна корист)
which had not been in compliance with the then State order
(општествено
уредување).
It dismissed the applicant's claim concerning the golden liras
since there had been no evidence that the applicant's father had been
in possession of any.
-
On 25 December 1992 the applicant appealed. On 6 February 1993 he
submitted observations in reply to the defendant's appeal, together
with an addendum to his appeal.
-
On 8 October 1993 the Štip District Court set aside the
first-instance court's decision since it had not complied with the
Supreme Court's instructions.
-
The proceedings resumed on 25 January 1994. Eight hearings were held
before the first-instance court, of which none was adjourned upon the
applicant's request.
-
On 8 December 1994 the Štip Municipal Court partially upheld
the applicant's claim. It declared that only the icon be included in
his late father's inheritance and dismissed the claim for annulment
of the agreement. It further reiterated its earlier findings as to
the golden liras. The decision was served on the applicant on 13
October 1995.
-
On 16 October 1995 the applicant appealed.
-
On 20 March 1996 the Štip District Court overturned the
decision and decided the case itself. It declared the agreement null
and void, but considered it as having been concluded as a gift
contract (договор
за подарок).
It upheld the remainder of the first-instance court's decision.
-
On 2 July 1996 the defendant filed an appeal on points of law before
the Supreme Court.
-
On 9 December 1998 the Supreme Court upheld the defendant's appeal
and quashed the District Court's decision. It further instructed that
court to establish whether the agreement had been concluded in a
statutory form.
-
On 14 April 2000 the Štip Court of Appeal remitted the case
for re-examination before the first-instance court. The decision was
served on the applicant on 8 April 2002.
-
Between 11 February 2003 and 20 April 2004 the first-instance court
scheduled five hearings, of which one was adjourned because of the
applicant's fault. During that time, the applicant lodged four
submissions before the court.
-
On 20 April 2004 the Štip Court of First Instance partially
upheld the applicant's claim - it declared that the agreement be
invalid and considered it as having been concluded as a gift
contract.
-
On 24 February 2005 the Štip Court of Appeal upheld the
defendant's appeal of 10 May 2004 and remitted the case for
re-consideration.
-
On 24 June 2005 the Štip Court of First Instance declared the
applicant's claim as withdrawn, as he had not appeared in court
despite being duly summoned. It so ruled as the case concerned a
dispute of minor value.
-
On 24 January 2006 the Štip Court of Appeal set aside that
decision arguing that the case could not be regarded as a dispute of
minor value.
-
On 15 June 2006 the Štip Court of First Instance dismissed the
applicant's claim for annulment of the agreement finding that the
latter had met the statutory requirements. That decision was given
after a hearing fixed for 23 May 2006 had been adjourned due to the
applicant's absence.
-
On 21 August 2006 the applicant appealed.
-
On 15 March 2007 the Skopje Court of Appeal dismissed the appeal and
confirmed the first-instance court's decision.
-
On 23 April 2007 the applicant lodged an appeal on points of law with
the Supreme Court. Proceedings before that court are still pending.
B. Relevant domestic law
-
Section 35 § 1 (6) of the Courts Act (Закон
за судовите)
of 2006 (“the 2006 Act”) provides that “the
Supreme Court is competent to decide applications about a violation
of the right to a hearing within a reasonable time, in proceedings
specified by law.”
-
Section 36 of the 2006 Act provides that “a party concerned can
lodge with the immediate higher court (непосредно
повисокиот
суд) an application for the protection
of the right to a hearing within a reasonable time if he or she
considers that it has been violated by a court of competent
jurisdiction. The immediate higher court considers the application
(постапува
по барањето)
within six months after it has been lodged and decides
whether the court below violated the right to a hearing within a
reasonable time. The higher court shall award just satisfaction to
the claimant if it finds a violation of the right to a hearing within
a reasonable time. The just satisfaction shall be paid from the
State's budget.”
-
Section 128 of the 2006 Act provides that it would become operational
on 1 January 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the 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
1. Non-exhaustion of domestic remedies
(a) The parties' submissions
- The
Government maintained that the applicant had failed to exhaust
domestic remedies as he had not lodged an application about a
violation of the right to a hearing within a reasonable time under
the 2006 Act. They argued that following the Atanasovic and
Kostovska judgments (see Atanasovic and Others v. the
former Yugoslav Republic of Macedonia, no. 13886/02, § 47,
22 December 2005 and Kostovska v. the former Yugoslav Republic of
Macedonia, no. 44353/02, § 53, 15 June 2006), the
respondent State had introduced a specifically designed remedy to
address the issue of an excessive length of proceedings. They averred
that although that remedy was of a compensatory nature, the wording
of the 2006 Act implied that it provided also for a preventive
remedy. They further submitted that that remedy was to be exhausted
in two cases: 1) in respect of all applications lodged with the Court
that post-dated the introduction of the 2006 Act, and 2) where the
impugned proceedings were pending at domestic level after 1 January
2007 and the application lodged with the Court pre-dated that date.
Relying on the Court's jurisprudence, they maintained that the
applicant had been required to exhaust that remedy although it had
not existed at the time when he had lodged his application with the
Court.
-
They further submitted that the remedy had been used in twenty cases
until 3 July 2007 and that no court decision had been taken yet.
However, the lack of domestic jurisprudence should not have been
considered to the detriment of the effectiveness of the remedy in
practice. Finally, they undertook to notify the Court about any court
decision if taken.
-
The applicant contested the effectiveness of the remedy introduced by
the 2006 Act. He disputed that that remedy had been apt to expedite
the proceedings. He confirmed the lack of domestic jurisprudence in
that respect and argued that it had been unclear which court would be
competent to decide it in his case. He finally referred to a Supreme
Court's report in which the latter had allegedly criticised the lack
of clarity of the 2006 Act and the effectiveness of the remedy. He
did not provide that report in support of his allegation.
(b) The Court's assessment
-
The Court reiterates that the purpose of the exhaustion rule,
contained in Article 35 § 1 of the Convention, is to
afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to it (see Selmouni v. France [GC],
no. 25803/94, § 74, ECHR 1999-IV). That rule is based on
the assumption, reflected in Article 13 of the Convention - with
which it has close affinity - that there is an effective remedy
available in respect of the alleged breach in the domestic system
(see Kudła v. Poland [GC], no. 30210/96, § 152,
ECHR 2000 XI).
- The
only remedies which Article 35 of the Convention requires to be
exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see Mifsud v. France (dec.) [GC], no.
57220/00, ECHR 2002 VIII).
- Furthermore,
in the context of Article 13 of the Convention, in the Kudła
judgment, the Court has held that remedies available to a
litigant at the domestic level for raising a complaint about a length
of proceedings are “effective” if they prevent the
alleged violation or its continuation, or provide adequate redress
for any violation that has already occurred.
- It
is true that, according to the “generally recognised principles
of international law”, there may be special circumstances which
absolve the applicant from the obligation to exhaust the domestic
remedies at his disposal. However, the Court points out that the
existence of mere doubts as to the prospects of success of a
particular remedy which is not obviously futile is not a valid reason
for failing to exhaust domestic remedies (see Giacometti and
Others v. Italy (dec.), no. 34939/97, ECHR 2001 XII).
- The
assessment of whether domestic remedies have been exhausted is
normally carried out with reference to the date on which the
application was lodged with it. However, this rule is subject to
exceptions, which may be justified by the particular circumstances of
each case (see Baumann v. France, no. 33592/96, § 47,
22 May 2001 and Brusco v. Italy (dec.), no.
69789/01, ECHR 2001 IX). In particular, the Court had previously
departed from this general rule in cases against Poland, Croatia and
Slovakia concerning remedies against the excessive length of the
proceedings (see Michalak v. Poland (dec.), no. 24549/03, §
36, 1 March 2005; Nogolica v. Croatia (dec.), no.
77784/01, ECHR 2002 VIII, Andrášik and Others
v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00,
60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002 IX).
-
As to the present case, at the time when the applicant brought his
complaint to the Court, he did not have any effective remedy
available under the law of the former Yugoslav Republic of Macedonia
in respect of the length of the pending proceedings in issue (see the
Atanasovic and Kostovska judgments, cited above). The
remedy against the excessive length of the proceedings was introduced
by the 2006 Act which became operational on 1 January 2007. The
applicant has not availed himself of that remedy.
43. The Court notes, first, that section 36 of the 2006 Act provides
for a compensatory remedy – a request for just satisfaction –
through which a party may, where appropriate, be awarded just
satisfaction for any non-pecuniary and pecuniary damage sustained. A
compensatory remedy is, without doubt, an appropriate means of
redressing a violation that has already occurred (see Scordino v.
Italy (no. 1) [GC], no. 36813/97, § 187, ECHR
2006; Mifsud v. France (dec.), no. 57220/00, § 17,
11 September 2002; Kudła, §§ 158 and 159, cited
above).
-
The Court further observes that the expression “the court
considers the application (постапува
по барањето)
within six months” is susceptible to various
interpretations (see, mutatis mutandis, Horvat v. Croatia,
no. 51585/99, § 43, ECHR 2001 VIII). It remains
open to speculation whether the proceedings upon such application
should terminate within that time-limit. In addition, the 2006 Act
defines two courts which may decide upon such remedy: the immediately
higher court and the Supreme Court. It does not specify which court
would be competent to decide if a case is pending before the Supreme
Court, as it is in the present case (see, a contrario,
Michalak, § 14, cited above). Even though the
Court accepts that statutes cannot be absolutely precise and that the
interpretation and application of such provisions depend on practice
(see, mutatis mutandis, Kokkinakis v. Greece, judgment
of 25 May 1993, Series A no. 260-A, p. 19, § 40), the fact
remains that no court decision has been taken although more than
twelve months have elapsed after the introduction of the remedy. The
absence of any domestic case-law appears to confirm that ambiguity.
-
Finally, unlike Slovenian, Polish and Italian laws which contain
transitional provisions concerning cases pending before the Court
(see Grzinčič v. Slovenia, no. 26867/02, § 48,
ECHR 2007; Michalak, § 20, cited above and Brusco
v. Italy, (dec.), no. 69789/01, ECHR 2001-IX), the 2006 Act
does not contain a provision which would explicitly bring within the
jurisdiction of the national courts all applications pending before
the Court irrespective of whether they are still pending at domestic
level.
-
Bearing in mind that the
case was pending before the domestic courts for more than twenty
years before the introduction of the remedy by the 2006 Act
and is still not decided and that no conclusions can be drawn from
the Government's submissions about its effectiveness in the
particular circumstances of a case like the present one, the Court
considers that it would be disproportionate to require the applicant
to try that remedy.
-
Against this background, the application cannot be declared
inadmissible for non-exhaustion of domestic remedies within the
meaning of Article 35 of the Convention. Accordingly, the
Government's objection must be rejected. 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 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 considered that there had been complex
circumstances related to the case, including the subject-matter of
the dispute and the passage of time between the conclusion of the
agreement (1979) and the introduction of the applicant's claim before
the domestic courts (1986), a fact which had a negative effect to
establishing of facts.
- As
to the applicant's behaviour, they argued that he had contributed to
that complexity by frequently amending the arguments and the nature
of his claim. That fact required the national courts to establish
considerable facts relevant for the case. Confusing and inconsistent
manner in which the applicant had presented his case reflected on the
number of remittal orders given in the impugned proceedings.
- Finally,
they averred that the length of each segment of the proceedings,
after the case was remitted for re-consideration, had not lasted
unreasonably long. The only exception was the service of the Court of
Appeal's decision of 14 April 2000 (see paragraph 20 above), which
had not added considerably to the overall length of the proceedings.
- The
applicant contested the Government's argument about the complexity of
the case. He disagreed that he had modified his claim and that that
had affected the length of the proceedings given the fact that, under
the applicable rules, the national courts had not been bound with the
contents of his claim. Relying on the numerous remittal orders given
in the proceedings, he stated that the length of the proceedings had
been excessive. Finally, in view of what was at stake for him, he
concluded that the national courts had not decided his case with due
diligence.
2. The Court's assessment
- The
Court notes that the impugned proceedings started on 17 November
1986 when the applicant brought his claim before the then Štip
Municipal Court. However, as noted by the Government, the period
which falls within its competence did not begin on that date but
rather 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 Ziberi v. the former Yugoslav
Republic of Macedonia, no. 27866/02, § 41, 5 July
2007). In this connection, the Court notes that at that point the
proceedings had lasted over ten years and ten months for three court
levels. The then District Court's decision of 20 March 1996 was the
last decision given within this time. During this time, the case was
re-considered on three occasions.
- The
impugned proceedings have not ended yet since the Supreme Court has
not decided upon the applicant's appeal on points of law of 23 April
2007. They have already lasted for over twenty-one years of which ten
years, nine months and five days fall within the Court's temporal
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 Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court considers that the subject-matter of the case cannot, in
itself, explain the length of the proceedings.
- It
also observes that changes of the applicant's claim and the two
adjournments requested by the applicant (see paragraphs 21 and 26
above) did not add much to the length of the proceedings.
- The
Court considers that the protracted length of the proceedings was due
to the repeated re-examination of the case (see Ziberi v. the
former Yugoslav Republic of Macedonia, no. 27866/02, § 46,
5 July 2007). 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). It
further observes that, as noted by the Government, it took the
domestic authorities nearly two years to serve the Court of Appeal's
decision on the applicant (see paragraph 20 above).
- 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, § 41, cited above and Muti v.
Italy, judgment of 23 March 1994, Series A no. 281 C, §
15).
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
submissions filed in reply to the Government's observations, the
applicant complained under Article 1 of Protocol No. 1 of the
Convention that due to the excessive length of the impugned
proceedings, his right to bring a compensation claim for having been
unable to use the land, subject of the agreement, had become
time-barred.
- The
Court notes that the impugned proceedings, which concerned the
assessment of the validity of the agreement under which the defendant
had obtained the title to the land, are still pending. In this
respect, any complaint under Article 1 of Protocol No. 1 related to
the outcome of the proceedings is premature. In addition, the
applicant cannot be regarded as having a “possession”
within the meaning of the Article invoked.
64.
The Court finds therefore that the matters complained of do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this
complaint 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.”
A. Damage
- The
applicant claimed 144,900 euros (EUR) in respect of pecuniary damage.
This claim related to the income that the applicant would have earned
if he would have used the land while the proceedings in question have
been pending. He also claimed an interest on 1,000,000 Macedonian
denars (MKD) (the value of the golden liras) because of his inability
to use them since 1986. Finally, he claimed EUR 60,000 in respect of
non-pecuniary damage for the anxiety and emotional suffer sustained
as a result of the protracted length of the proceedings.
- The
Government contested these claims as unsubstantiated. They further
maintained that there was no causal link between the pecuniary damage
claimed and the alleged violation because the applicant had not had a
title to the land and the impugned proceedings had not ended yet.
- The
Court, as argued by the Government, does not discern any causal link
between the violation found and the pecuniary damage alleged. The
Court therefore rejects this claim. On the other hand, it considers
that the applicant must have sustained non-pecuniary damage in
respect of the violation found. Ruling on an equitable basis, it
awards a total sum of EUR 4,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses without
specifying whether they were incurred before the domestic courts or
before this Court. He did not provide any supporting document.
- The
Government contested the claim as excessive and unsubstantiated.
- According
to the Court's case-law, an award can be made in respect of costs and
expenses only in so far as they have been actually and necessarily
incurred by the applicant and are reasonable as to quantum (see
Kostovska, cited above, § 62; Arvelakis v. Greece,
no. 41354/98, § 34, 12 April 2001; Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR
1999-II). The Court points out that under Rule
60 of the Rules of Court “the applicant must submit itemised
particulars of all claims, together with any relevant supporting
documents failing which the Chamber may reject the claim in whole or
in part”.
- The
Court notes that the applicant did not submit any supporting
documents or particulars to substantiate his claims. Accordingly, the
Court does not award any sum 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 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;
3. 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 4,000 (four
thousand euros) 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, plus any tax that may be
chargeable;
(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 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
