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FIFTH
SECTION
CASE OF JANKULOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 6906/03)
JUDGMENT
STRASBOURG
3
July 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 Jankulovski v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 6906/03) 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 Tomce Jankulovski (“the applicant”),
on 5 February 2003. He was born in 1962 and lives in
Bitola.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
30 January 2006 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) Civil proceedings for debt
- On
an unspecified date in 1995, the applicant instituted civil
proceedings for debt against Mr N. and a company run and owned by the
latter (“the company”). He claimed that he had bought a
vehicle (“the vehicle”) for 54,000 German marks (“DM”)
for the benefit of the company and that, in return, he had received
from Mr N. another vehicle and DM 10,000. The remaining balance was
DM 24,000.
- On
26 September 1995 the then Bitola Municipal Court (Општински
суд Битола)
(“the first-instance court”) issued an
injunction preventing Mr N. from selling the vehicle.
- On
27 November 1995 the first-instance court ruled partly in favour of
the applicant and ordered Mr N. and the company (“the debtors”)
jointly to pay him DM 24,000 together with interest (домицилна
камата).
In addition, it ordered the debtors to pay the applicant’s
costs. On 28 February 1996 the then Bitola District Court
(Окружен
суд Битола)
confirmed that decision. It also declared it final in respect of Mr
N. as he had not challenged it.
- On
25 September 1997 the Supreme Court upheld an appeal by the applicant
on points of law (ревизија)
and quashed the lower courts’ decisions in respect of the
company only. It held that they had not decided the applicant’s
claim as submitted, in that they had ignored his request to have his
claim converted into the national currency.
- On
29 April 2004 the first-instance court upheld the applicant’s
claim and ordered the debtors (Mr N. and the company) jointly to pay
the applicant 636,384.00 Macedonian denars (equivalent to DM 24,000)
together with default interest (затезна
камата)
calculated as of 11 August 1995. On 13 September
2004 that court ordered the debtors to reimburse the trial costs
incurred by the applicant. On 4 November 2004 those decisions became
final.
(b) Enforcement proceedings
- On
1 April 1996 the first-instance court granted the applicant’s
request for enforcement of the decision of 27 November 1995. The debt
was to be honoured by an inventory and public sale of Mr N.’s
property or by its transfer from the company’s bank account. On
13 May 1996 that court refused the company’s objection and
declared the order against Mr N. final as he had not challenged it.
That decision was confirmed by the then Bitola District Court’s
decision of 10 June 1996.
- On
17 June 1996 the first-instance court ordered the then Payment
Exchange Office (Завод
за платен промет)
to enforce its order by transferring the amount due from the
company’s account to the applicant’s. On 2 July 1996 the
first-instance court ordered enforcement of the applicant’s
claim by means of an inventory and public sale of the debtors’
movable property, including the vehicle. That decision was set aside
by the Bitola Court of Appeal on 24 October 1996.
- After
establishing that there were insufficient funds in the company’s
account, on 26 December 1996 the first-instance court ordered
continuation of the enforcement proceedings. A public sale of the
vehicle was fixed for 24 March 1997. On 25 March 1997 a third party
challenged that decision since it had obtained possession of the
vehicle on the basis of a sales contract concluded with the company.
- On
14 April 1997 the first-instance court granted the applicant an
enforcement title over the vehicle and ordered the third party to
transfer the vehicle into the applicant’s possession. On 3 June
1997 the Bitola Court of Appeal dismissed appeals by the debtors and
the third party and confirmed the above decision.
- On
18 December 1997 the first-instance court authorised the third party
to register the disputed vehicle in his possession, but ordered him
not to sell it before the final conclusion of the enforcement
proceedings. It established that Mr N. had meanwhile deposited about
DM 13,000 in various currencies to secure the applicant’s
claim.
- On
23 January 1998 Mr N. left the respondent State.
- On
27 January 1998 the first-instance court ordered its treasurer to
transfer to the applicant the funds deposited by Mr N.
- On
11 March 1998 the first-instance court requested the police to
confiscate the disputed vehicle from the third party. The police
replied that the third party had obtained ownership of the vehicle on
the basis of a sales contract certified by the Štip Court of
First Instance and that accordingly, the latter court should proceed
with the enforcement.
- On
27 April 1998 the Supreme Court informed the applicant that the
enforcement of his claim had been delayed as the whereabouts of Mr N.
were unknown. On 9 September 1998 that court stated that the delay
had been caused by the police’s failure to enforce the order.
On 12 November 1998 the Ombudsman informed the applicant that the
case had been transferred to the Štip Court of First Instance,
as competent ratione loci, to proceed with the enforcement.
- On
17 June 1998 Mr N. was convicted of fraud and sentenced to one year’s
imprisonment for selling the vehicle to the third party despite the
court’s order (see paragraph 5 above) not to do so.
- On
2 June 1999 the first-instance court informed the applicant that as
of 16 February 1999 the enforcement proceedings had been transferred
to the Štip Court of First Instance. It also referred to the
deposit which had been made available to him.
- On
15 June 1999 the funds deposited with the first-instance court (see
paragraph 13 above) were handed to the applicant, as evidenced by a
payment slip of that date.
- On
15 November 2004 the applicant requested enforcement of the
first-instance court’s decisions of 29 April and 13 September
2004 (see paragraph 9 above). In that submission, he also referred to
the enforcement proceedings of 1996 pending between the same parties
in relation to the same subject-matter.
- On
16 January 2006 the first-instance court requested information from
the Štip Court of First Instance regarding measures taken with
a view to enforcing the applicant’s claim. No further action
was taken in respect of the enforcement proceedings.
- In
the course of these proceedings, the applicant requested various
institutions, on many occasions, to expedite the enforcement
proceedings concerning his claim.
RELEVANT
DOMESTIC LAW
- Section
32 §§ 5 and 7 of the Enforcement Proceedings Act then in
force provided that 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
88 of the Act, which concerned the enforcement of payment through
seizure of movable property, provided that the money obtained from
the sale of that property would be used for reimbursement of, inter
alia, the costs of enforcement incurred by the creditor.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL NO. 1 OF THE CONVENTION
26. The
applicant complained about the unreasonable delay of the enforcement
proceedings and his inability to recover his debt. The Court
considers that those complaints concerned the non-enforcement of the
applicant’s civil judgment debt and that, accordingly, they
fall to be considered under Articles 6 § 1 and Article 1 of
Protocol No. 1 of the Convention, the relevant parts of which read as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government have not raised any objections as to the admissibility of
these complaints.
- 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 stated that the case had been of a complex nature which
required numerous expert examinations and consideration of voluminous
documentation. They further maintained that the impugned proceedings
had been composed of a number of separate actions, including the
enforcement stage. The fact that the parties concerned had availed
themselves of the available remedies affected the length of the
enforcement proceedings. In addition, several State institutions were
involved in these latter proceedings, which contributed to the
complexity of the case. They further argued that the applicant
himself, by failing to specify his claim in good time and to expedite
the proceedings, added much to the length of the proceedings. He had
further failed to seek alternative means to secure his claim, but had
relied entirely on those undertaken by the first-instance court.
- As
regards the conduct of the national courts, the Government argued
that they had decided the applicant’s case with due diligence
despite the fact that the civil proceedings had lasted over nine
years, while the enforcement proceedings were still pending.
- They
further submitted that the applicant could rely on Article 1 of
Protocol No. 1 only in respect of the part of his claim which
remained unenforced. No evidence was produced that he could be
deprived of that part of his claim.
- The
applicant contested the Government’s arguments and stated that
they concerned mainly the civil proceedings, but not the
non-enforcement, as the most salient issue in his case. He maintained
that no delays could be attributed to him. He confirmed that only
part of his claim remained unenforced, namely DM 11, 000, plus
interest and the awarded trial costs. He further argued that he had
submitted many requests to expedite the enforcement of that part of
his claim, none of which had been successful.
2. The Court’s assessment
(a) General principles
- The
Court recalls that the right to a court would be illusory if a
Contracting State’s domestic legal system allowed a final,
binding judicial decision to remain inoperative to the detriment of
one party. It would be inconceivable that Article 6 § 1 should
describe in detail procedural guarantees afforded to litigants –
proceedings that are fair, public and expeditious – without
protecting the implementation of judicial decisions; to construe
Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Immobiliare Saffi v. Italy [GC],
no. 22774/93, § 63, ECHR 1999-V). A delay in the execution of a
judgment may, however, be justified in particular circumstances, but
this delay may not be such as to impair the essence of the right
protected under Article 6 § 1 (ibid., § 47).
- In
terms of Article 1 of Protocol No. 1, a “claim” can
constitute a “possession” if it is sufficiently
established to be enforceable (see Burdov v. Russia,
no. 59498/00, § 40, ECHR 2002-III). By virtue of
Article 1 of the Convention, each Contracting Party “shall
secure to everyone within [its] jurisdiction the rights and freedoms
defined in ... [the] Convention”. The obligation to secure the
effective exercise of the rights defined in that instrument may
result in positive obligations for the State. As regards the right
guaranteed by Article 1 of Protocol No. 1, those positive obligations
may entail certain measures necessary to protect the right to
property, even in cases involving litigation between private
individuals or companies. This means, in particular, that States are
under an obligation to ensure that the procedures enshrined in the
legislation for the enforcement of final judgments are complied with
(see Fuklev v. Ukraine, no. 71186/01, §§ 89-91,
7 June 2005, with further references).
(b) Application of these principles to the present
case
- The
Court notes that, by the decision of 27 November 1995, the
first-instance court accepted the applicant’s claim and ordered
the debtors jointly to pay the debt. That decision became final and
enforceable only in respect of Mr N. On 29 April 2004, after the
Supreme Court’s decision of 25 September 1997, the
first-instance court ordered the debtors again jointly to repay the
debt. The enforcement proceedings which the applicant instituted on 1
April 1996 with a view to securing payment of his debt, established
initially by the decision of 27 November 1995 and subsequently by the
decision of 29 April 2004, are still pending. The impugned situation
has thus already been continuing for nearly eleven years since the
ratification of the Convention by the respondent State on 10 April
1997 (the period which falls within the Court’s jurisdiction
ratione temporis).
- 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
1998-VIII) and notes that on 10 April 1997 the enforcement stage
of the proceedings complained of had already been pending for just
over one year.
- The
Court reiterates that the State has an obligation under Article 6 to
organise a system for the enforcement of judgments that is effective
both in law and in practice and ensures their enforcement without
undue delay Fuklev v. Ukraine, referred to above, § 84,).
- As
to the present case, part of the applicant’s claim was
satisfied (see paragraph 20 above). The remaining part of the debt,
however, has not yet been honoured. In the course of the enforcement
proceedings the applicant proposed two alternative means of
enforcement: public sale of the debtors’ movable property or
transfer of the amount due from the company’s account. Since
the latter means lacked any prospect of success, the enforcement
continued against the debtors’ movable property. Indeed, a
public sale of the vehicle was fixed by the first-instance court to
that end (see paragraph 11 above). The applicant was even granted, by
a final decision, an enforcement title over that vehicle. A third
party who was in actual possession of the vehicle was also ordered to
transfer it in the applicant’s possession (see paragraph 11
above). Instead of completing the enforcement against the vehicle,
the same court later authorised the third party to register it in his
possession (see paragraph 12 above). The subsequent confiscation
order of the vehicle was unsuccessful because, as the Supreme Court
found, the police had failed to enforce the order (see paragraphs 16
and 17 above). Given the third party’s residence, on
16 February 1999 the applicant’s case was reassigned to
the Štip Court of First Instance (see paragraph 19 above). The
Court finds that that court did not take any measure to enforce
payment of the remaining debt. It was only on 16 January 2006, that
is seven years after the reassignment of the case, that the
first-instance court made queries about the state of affairs
regarding the enforcement of the applicant’s claim. The
applicant’s numerous requests to expedite enforcement also
proved unsuccessful.
- Against
this background, the Court considers that the respondent State has
failed to conduct the enforcement proceedings at issue effectively
(see Fuklev v. Ukraine, cited above, § 86). The
Government’s arguments about the complexity of the case and the
applicant’s alleged contribution to the partial non-enforcement
of his claim cannot alter that conclusion. It therefore finds that
the Macedonian authorities impaired the essence of the applicant’s
“right to a court” and failed to comply with their
obligation to secure to the applicant the effective enjoyment of his
right of property as established by the court decisions given in the
substantive proceedings. There has accordingly been a violation of
Article 6 § 1 of the Convention and a separate violation of
Article 1 of Protocol No. 1 (see Kolyada v. Russia,
no. 31276/02, § 25, 30 November 2006).
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.”
- In
the application, the applicant requested payment of his claim,
together with interest, but failed to comply with Rule 60 of the
Rules of Court in that he did not submit any claim for just
satisfaction after the application had been communicated to the
respondent Government. In these circumstances, the Court makes no
award under Article 41 of the Convention (see Nikolov v. the
former Yugoslav Republic of Macedonia, no. 41195/02, § 33,
20 December 2007).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there have been violations of Article
6 § 1 and Article 1 of Protocol No. 1 of the Convention.
Done in English, and notified in writing on 3 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
