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FIFTH
SECTION
CASE OF DIMITRIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 26602/02)
JUDGMENT
STRASBOURG
18
December 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 Dimitrievski 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 25 November
2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26602/02) 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 Tihomir Dimitrievski (“the
applicant”), on 2 July 2002.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
9 May 2006 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings.
It also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
- The
applicant was born in 1936 and lives in Skopje.
- On
3 April 1995 the applicant instituted civil proceedings before the
then Skopje Municipal Court (Општински
Суд Скопје)
(“the first-instance court”) against the
Copyright Agency of Macedonia-Skopje (“the company”)
claiming payment of an outstanding dividend. He alleged that the
company's restructuring had been unlawful and that the latter had not
calculated his salary in compliance with the applicable legislation
at that time (the applicant alleged that the company had not been
fully privatised and that accordingly, it should have applied
legislation concerning socially-owned enterprises). He further
claimed that the company had misappropriated part of its profits and
distributed them to its employees as salaries. In that latter
context, he claimed a higher dividend than he had actually received
(he claimed to have possessed 13.63% of the company's capital and not
11.918%).
-
On 17 February 1997 the court ordered an expert examination of the
applicant's claim. It appears that the expert report was produced in
August 1997.
-
On 29 May 1997 the applicant brought a separate civil action against
the company's manager. On 25 December 1997 the first-instance court
joined the two applications since they concerned the same issues of
facts and law.
-
On 3 December 1997 the applicant unsuccessfully proposed a friendly
settlement of the case.
-
In September 1998 the applicant successfully applied for the removal
of the judge sitting in his case. The sitting judge also asked to
withdraw due to the applicant's difficult behaviour, namely that he
had repeatedly accused the courts and experts of bias and
incompetence.
-
None of five hearings fixed between 25 November 1999 and 5 October
2000 was adjourned at the applicant's request.
-
On 29 November 2000 the chairman of the panel deciding the
applicant's case withdrew because the applicant had brought criminal
charges against her. The latter were rejected by the public
prosecutor.
-
Hearings listed on 29 May, 12 July and 21 December 2001 and
14 February 2002 were rescheduled due
to the absence of the sitting judge or the incorrect summoning of the
defendants.
-
By submissions of 18 November 1998, 4 May 1999, 25 April 2000, 25
April 2001 and 1 March 2002, the applicant submitted further
applications increasing his claim.
-
On 28 March 2002 the first-instance court dismissed the applicant's
claim. On 4 September 2002 this decision was served on the applicant.
-
On 19 December 2002 the Skopje Court of Appeal dismissed an appeal
lodged by the applicant on 18 September 2002.
-
On 12 February 2003 the applicant lodged an appeal on points of law
(ревизија)
with the Supreme Court. On 5 and 20 March 2003 he filed supplements
to his appeal.
-
On 23 June 2004 the Supreme Court dismissed the applicant's appeal.
This decision was served on him on 16 December 2004.
-
On 20 December 2004 the first-instance court dismissed the
applicant's request for rectification of its decision, which had been
in fact a request for a fresh decision on the merits.
-
The composition of the first-instance court's panel changed four
times during the proceedings in question.
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
-
The Government did not raise any objection as to the admissibility of
this complaint.
-
The Court notes that this complaint 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
23. 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 there had been complex circumstances
related to the case, including the nature of the dispute (the
company's restructuring and payment of the dividend); the change of
the corporate status of the company during the proceedings and the
applicant's behaviour. As to the latter, they submitted that he had
contributed considerably to the length of the proceedings, namely
that he had brought two separate claims which had been joined
subsequently; he had filed numerous and voluminous submissions
repeating his claims in unclear language; he had increased his claim
several times and requested removal of the sitting judges. He had
also brought criminal charges against one of them.
-
As to the national courts, the Government argued that no delays were
attributable to them. They concluded that the State could not be held
responsible for the applicant's behaviour.
- The
applicant contested the Government's arguments concerning the
complexity of the case and his contribution to the length of the
proceedings. In this latter context, he argued that he had had a
right to file submissions in support of his arguments. Furthermore,
he had attended all hearings as scheduled.
2. The Court's assessment
- The Court notes that the proceedings started on 3
April 1995 when the applicant requested the courts to decide his
claims. However, as noted 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 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 two years at one level of jurisdiction.
-
The proceedings ended on 16 December 2004 when the Supreme Court's
decision of 23 June 2004 was served on the applicant. The proceedings
therefore lasted over nine years and eight months, of which seven
years, eight months and six days fall within the Court's temporal
jurisdiction at three court levels.
29. With reference to its settled case-law on this matter, the Court
will assess the reasonableness of the length of the proceedings in
the light of the particular circumstances of the case having regard
to its complexity, to the conduct of the applicant and to that of the
authorities dealing with the case (see Markoski v. the former
Yugoslav Republic of Macedonia,
no. 22928/03, § 32, 2 November 2006).
- The
Court first observes that the subject matter of the case before the
domestic courts was complex, as shown, inter alia, by the fact
that it involved examination of a considerable amount of documentary
evidence concerning the company and its privatisation. The courts
were also requested to determine the outstanding dividend and to
examine other ancillary issues, such as the payment of the
applicant's salary. The necessity of obtaining an expert examination
of the applicant's claim supports the Court's findings about the
complexity of the case.
- The Court considers that the applicant contributed to
the protraction of the proceedings. He initially brought two separate
claims concerning the same issues of fact and law which led to their
being joined in single proceedings; he increased his claim several
times; he challenged the impartiality of one judge and brought
criminal charges against another one; and he questioned the
competence of the expert involved in his case. In this connection,
the Court reiterates that although a party to civil proceedings
cannot be blamed for using the venues available to him under domestic
law in order to protect his interests, he must accept that such
actions necessarily prolong the proceedings concerned (see
Malicka-Wąsowska v. Poland, (dec.), no. 41413/98, 5
April 2001). The Court finds that the applicant was responsible for
one-year delay of the proceedings in question. On the other hand, the
applicant attended all scheduled hearings.
- The
Court finds that significant delays are attributable to the national
authorities. While the higher courts examined the applicant's appeals
with reasonable expedition, the first-instance court gave the first
and only decision nearly seven years after the introduction of the
applicant's claim, of which nearly five years fall within the Court's
temporal jurisdiction. Despite the latter's behaviour, that time
cannot be regarded as reasonable. During this period, a number of
hearings were adjourned because either the defendants were not
summoned properly or the sitting judge was absent. It further took
about six months for the court-appointed expert to produce his
opinion. That delay can be attributed only to the State (see Stojanov
v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 60,
31 May 2007). The changes of the
composition of the adjudicating panel added to the length of the
proceedings since the hearing restarted after each change. Finally,
it took a total of about eleven months to serve two court decisions
on the applicant (see paragraphs 14 and 17 above).
- Having
regard to its case-law on the subject, 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. 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 350,000 euros (EUR) in respect of pecuniary damage,
corresponding to the unpaid dividend plus interest. He also claimed
EUR 30,000 in respect of non-pecuniary damage, for the stress and
mental suffering caused by the protracted length of the proceedings.
37
The Government contested these claims as unsubstantiated. They argued
that there was no causal link between the alleged violation and the
pecuniary damage claimed. By making that claim, the applicant was in
fact asking the Court to decide his case as brought before the
national courts.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
On the other hand, it awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,460 for the costs and expenses incurred
before the domestic courts. These included the courts' and the
expert's fees. He further claimed EUR 3,238 for copying, mailing and
translation of documents submitted to the Court and for medical and
transport services related to his poor health. The applicant provided
payment slips in support of his claims.
- The
Government contested these claims.
- 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). As to the costs and expenses incurred domestically, the Court
notes that they 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.
On the other hand, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the applicant, who was not represented by a lawyer, the sum
of EUR 200 for the proceedings before the Court.
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 remainder of the application
admissible;
- 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, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 600 (six hundred euros) for non-pecuniary
damage;
(ii) EUR 200 (two hundred euros) in respect of costs and
expenses;
(iii) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18
December 2008, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
