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FIFTH
SECTION
CASE OF
VELJANOSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 35640/04)
JUDGMENT
STRASBOURG
23 July
2009
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 Veljanoska 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,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 30 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35640/04) 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,
Ms
Gordana Veljanoska (“the applicant”), on 9 September
2004.
- The
applicant was represented by Mr S. Tomoski, a lawyer practising in
Ohrid. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
2 May 2007 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
- The applicant was born in 1962 and lives in Ohrid.
- On
16 September 1994 she brought before the Ohrid Court of First
Instance (“the first-instance court”) a compensation
claim against the Ohrid Health Centre (“the hospital”)
for pecuniary and non-pecuniary loss sustained as a result of an
alleged medical negligence during a 1991 surgery.
- On
1 December 1994 the first-instance court ordered the applicant to
propose, within ten days, an expert so that to assess whether she had
received proper care in the hospital.
- On
27 February 1995 the applicant made a proposal, while the hospital
consented with Mr V.Dz. being the expert on 19 April 1995.
- On
8 May 1995 the first-instance court ordered the expert to produce his
opinion, which he did on 3 October 1995. On this latter date, the
applicant increased the value of her claim.
- On
14 November 1995 the applicant requested additional expert
examination. As on 7 March 1996 the expert requested exclusion, the
court ordered the applicant to propose a new expert within fifteen
days. She proposed a new expert on 17 December 1996. The expert
submitted his report only on 5 November 1997, while being ordered to
do so on 6 March 1997.
- After
three hearings being adjourned on the applicant's request and four
hearings on the hospital's request, the first-instance court ruled
partly in favour of the applicant on 17 March 1998.
- On
20 October 1998 the Bitola Court of Appeal upheld the parties'
appeals and remitted the case for a renewed consideration.
- Hearings
scheduled for 30 June and 9 November 1999 respectively, were
adjourned due to the absence of witnesses.
- On
26 May 1999 the first-instance court requested an additional expert
examination by Mr V.Dz.. On 9 November 1999 the court withdrew this
request due to the expert's repeated absence from hearings.
- On
14 December 1999 the first-instance court dismissed the applicant's
claim. On 17 May 2000 the Bitola Court of Appeal upheld the
applicant's appeal and referred the case back for a fresh
consideration.
- On
16 December 2000 the first-instance court ordered the Forensic
Institute to draw up the third expert report.
- On
27 March 2002 the Forensic Institute informed the court that the
applicant had failed to attend medical examinations fixed for 6, 14
and 25 March 2002, respectively.
- On
23 April 2002 the first-instance court dismissed the applicant's
claim relying, inter alia, on her failure to undergo medical
examination. This decision was upheld by the Bitola Court of Appeal's
and the Supreme Court's decisions of 5 February 2003 and 28 January
2004, respectively. This latter decision was served on the applicant
on 10 April 2004.
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
- 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 further stated
that there had been complex circumstances related to the case, such
as the assessment of the pecuniary and non-pecuniary loss, the
difficulties between the parties in agreeing on the appointment of
experts and the need for the applicant's further medical examination.
- They
also argued that the applicant had contributed to the length of the
proceedings by failing to attend three hearings (see paragraph 10
above) and to undertake medical examination as requested by the
Forensic Institute (see paragraph 16 above). In addition, her failure
to propose, in a timely manner an expert (see paragraph 9 above) and
her request increasing the value of her claim had added considerably
to the length of the proceedings (see paragraph 8 above). Lastly,
four adjournments were imputable to the hospital (see paragraph 10
above).
- The
applicant contested the Government's arguments.
2. The Court's assessment
- The Court notes that the proceedings started on 16
September 1994 when the applicant brought her claim before the
first-instance court. 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 and six months at one level of
jurisdiction.
- The
proceedings ended on 10 April 2004 when the Supreme Court's decision
was served on the applicant. They therefore lasted over nine years
and six months, of which seven years fall within the Court's temporal
jurisdiction at three court levels.
- 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 considers that the case was of some complexity, but that cannot
in itself explain the length of the proceedings.
- It
further finds no adjournments attributable to the applicant within
the period which falls within its competence ratione temporis.
Her failure to undergo medical examination requested by the Forensic
Institute (see paragraph 16 above) did not add
much to the length of the proceedings.
- On
the other hand, the Court finds significant delays attributable to
the first-instance court. In this connection, it observes that within
the period which falls within its jurisdiction it took nearly two
years and six months for that court to decide the applicant's case
(see paragraph 10 above). It took another two years for the same
court to render a decision after the case had been referred back for
re-examination (see paragraph 17 above). Delays related to the expert
examinations (see paragraphs 13, 15 and 16 above) are imputable to
the State (see, mutatis
mutandis, Stojanov v. the
former Yugoslav Republic of Macedonia, no. 34215/02, § 60,
31 May 2007).
- 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
- The
applicant further complained that judges had been biased since the
hospital, as the opposing party, had been a public funded
institution.
- The
Court considers that this complaint is unsubstantiated since the
applicant did not present any evidence that the hospital's public
funding played any role in the courts' adjudication.
- It
follows that this part of the application is manifestly ill-founded
and 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 1,000 euros (EUR) in respect of pecuniary damage
for loss of income due to her inability to go to work pending her
case. She further claimed EUR 10,000 in respect of non-pecuniary
damage for the emotional stress and suffering caused by the length of
the proceedings.
- The
Government contested the applicant's claim for loss of income arguing
that she had been represented by a lawyer in the domestic
proceedings. They further argued that her claim for non-pecuniary
damage was unsubstantiated.
- 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, ruling on an equitable basis, it awards her
EUR 1,200 under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 6,033 for the costs and expenses incurred
before the domestic courts. These included the legal, courts' and
experts' fees. As to costs and expenses incurred before this Court,
she claimed EUR 800 for the lawyer's fees and for translation of
documents, and duly supported her claims by respective invoices.
- The
Government contested the applicant's claims.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation found, and
reasonable as to quantum, are recoverable under Article 41 (see
Kyrtatos v. Greece, no. 41666/98, § 62,
ECHR 2003 VI (extracts)). Concerning the
applicant's request for reimbursement of the costs incurred in the
proceedings before the domestic courts, the Court notes that such
costs had not been incurred in order to seek through the domestic
legal order prevention and redress of the alleged violation
complained of before the Court. Accordingly, it does not award
any sum under this head (see Milošević v. the former
Yugoslav Republic of Macedonia, no. 15056/02, § 34,
20 April 2006). As to the legal costs and
expenses incurred before it, regard being had to the
information in its possession and the above criteria, the Court
awards the sum of EUR 600 to cover the applicant's costs and
expenses, plus any tax that may be chargeable to her.
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 in respect of the length of proceedings;
- 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 1,200 (one thousand and two hundred euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 600 (six hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(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 23 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
