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FIFTH
SECTION
CASE OF KAMBERI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 39151/04)
JUDGMENT
STRASBOURG
22
October 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 Kamberi v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 29 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39151/04) 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, Mr Islam Kamberi (“the applicant”),
on 22 October 2004.
- The
applicant was represented by the Skopje Office of the
Helsinki Committee for Human Rights.
The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- On
14 September 2007 the
President of the Fifth Section decided to communicate the complaint
concerning the length of the proceedings. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Gostivar.
- In
1968 the then Assembly of the Municipality of Gostivar expropriated,
inter alia, a plot of a construction land (“the
property”) from the applicant's late father with the stated aim
of building a nursery school. Compensation was to be determined by a
separate decision.
- On
7 January 1996 the applicant requested the then Gostivar Municipal
Court, in non-contentious proceedings, to award him compensation
according to the market value of the property. Three other persons
joined these proceedings.
- On
22 September 1999 the Gostivar Court of First Instance (“the
first-instance court”) upheld the applicant's request and
ordered the Municipality of Gostivar to compensate him for the
expropriated property. It further dismissed his request against the
State for lack of standing. On 24 February 2000 the Skopje
Court of Appeal quashed that decision arguing, inter alia,
that the lower court had incorrectly specified the award.
- Between
25 January 2001 and 19 November 2003 the Skopje Court of Appeal
ordered retrial on three occasions.
- On
20 June 2005 the first-instance court awarded the applicant
compensation in the amount specified by an expert and ordered its
joint payment by the State and the nursery school. It also ordered
that the latter reimburse the applicant for his legal costs.
- On
30 November 2005 the Court of Appeal upheld the lower court's
decision in respect of the awarded compensation and remitted the
remainder for a fresh consideration.
- On
26 January 2006 the Solicitor General submitted an appeal on points
of law before the Supreme Court. On 14 February 2006 the applicant
submitted his observations in reply.
- On
10 February 2006 the applicant sought enforcement of the Appeal
Court's decision of 30 November 2005. He proposed that the award be
transferred to his bank account. On 24 February 2006 the
first-instance court requested the applicant to pay the court fees.
- On
21 March 2006 the public prosecutor lodged a request for protection
of legality with the Supreme Court.
- On
14 April 2006 the applicant again requested enforcement of his claim
established by the court decision of 30 November 2005. His request
was granted on 19 April 2006.
- On
22 June 2006 the applicant and the State concluded an out-of-court
settlement (вонсудска
спогодба)
(“the settlement”) under which the State undertook
to recognise the applicant's title to the property (право
на сопственост);
to register him as a co-owner in the land registry; and to withdraw
extraordinary remedies submitted on its part. The applicant agreed to
withdraw his request for enforcement and to refrain from claiming any
payment in respect of the above decisions.
- The
enforcement proceedings were terminated by a decision of the Skopje
Court of First Instance of 13 September 2006.
- Notwithstanding
the settlement, the request for the protection of legality was not
withdrawn. On 18 April 2007 the Supreme Court granted this request
and quashed the lower courts' judgments in respect of the awarded
compensation. The court dismissed the applicant's objection that the
above request should be rejected as the parties have concluded the
settlement. It held that the lower courts did not give sufficient
reasons in their judgments and that it was not clear who was required
to pay the compensation. The court, however, rejected the appeal on
points of law lodged by the Deputy Solicitor General as it found that
both parties withdrew their submissions stating that they have
settled.
- The
proceedings resumed before the first-instance court. On a hearing
held on 13 July 2007, the applicant confirmed that the property had
been restored to him and withdrew his compensation claim. The
first-instance court acknowledged the withdrawal.
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
there had been complex circumstances related to the case, such as the
need to specify the amount of compensation and the party responsible
to pay it (see paragraphs 7 and 17 above). In addition, the fact that
other parties joined the proceedings and that the property had been
expropriated long time ago added to the complexity (see paragraphs 5
and 6 above).
- They also argued that the
applicant had contributed to the length of the proceedings by
availing himself of all remedies and by introducing his claim
twenty-eight years after the expropriation.
- The applicant contested the
Government's arguments.
2. The Court's consideration
25. The Court notes that the proceedings started on 7 January
1996 when the applicant introduced his claim. 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 one year and three months at one level of
jurisdiction.
- The
Court considers that the proceedings ended on 13 July 2007 when the
applicant's compensation claim was declared as withdrawn. The
proceedings therefore lasted over eleven years
and six months, of which ten years, three months and five days fall
within the Court's temporal jurisdiction at three court levels.
- 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
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, which arose from the
need for expert examination, but that cannot in itself explain the
length of the proceedings.
- Concerning
the applicant's conduct, the Court considers that he did not
significantly contribute to the length of the proceedings as the fact
that he used the available remedies cannot be considered as
contributing to the length of the
proceedings (see Kostovska v. the former
Yugoslav Republic of Macedonia, no.
44353/02, § 44, 15 June 2006).
- The Court considers that
the protracted length
of the proceedings was due to the repeated re-examination of
the case. During the time which falls within its competence
ratione temporis, the case was reconsidered on five occasions
(see paragraphs 7, 8 and 10 above). 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 Ziberi, cited above, § 46).
- 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 Rizova v. the former Yugoslav Republic of Macedonia, no.
41228/02, § 48, 6 July 2006).
- 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 under Article 6 of the Convention that
judges had not been impartial. He also complained under Article 1 of
Protocol No. 1 that no compensation had been paid for the
expropriated property. These complaints were introduced before the
settlement.
- The
Court has examined the remainder of the applicant's complaints and
finds that, in the light of all the materials in its possession, and
in so far as the matters complained of are within its competence,
they 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 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 10,000 euros (EUR) in respect of non-pecuniary
damage for the emotional suffering due to “lack
of subsistence funds” during the lengthy proceedings.
-
The Government contested the claim.
- The
Court considers that the applicant's claim for
and non-pecuniary
damage loss that he had sustained is
sufficiently linked to the lengthy duration of the proceedings at
issue. It therefore awards him EUR 3,200 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for the costs and expenses incurred
before the domestic courts. He did not seek reimbursement of the
costs and expenses incurred in the proceedings before this Court.
-
The Government contested the claim.
- 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). The
Court notes that the costs claimed 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).
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 the
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, EUR 3,200
(three thousand and two hundred 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
