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FIFTH
SECTION
CASE OF IVANOVSKI AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 34188/03)
JUDGMENT
STRASBOURG
26
November 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 Ivanovski and Others 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,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34188/03) 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 two Macedonian nationals,
Mr Slobodan Ivanovski (“the first applicant”)
and Mr Cvetan Velkoski (“the second applicant”) on
21 October 2003. The first applicant, who has а
Croatian citizenship, also
submitted the application on behalf of Mr Mile Stojčevski.
- Mr
Mile Stojčevski and the second applicant died on
27 February 2002 and 30 December 2005, respectively. Their
widows, Mrs Vasilka Stojčevska and Mrs Stojanka Velkoska,
both citizens of the former Yugoslav Republic of Macedonia and
resident in Skopje, applied to continue the application
in their name. They further authorised the first applicant to
represent them in this case.
-
The Macedonian Government (“the Government”)
were represented by their Agent, Mr Mrs R. Lazareska Gerovska.
- On
6 September 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
5. On
17 August 2009 the Croatian Government, having been informed of their
right to intervene in the proceedings in respect of the first
applicant (Article 36 § 1 of the Convention and Rule 44 of the
Rules of Court), indicated that they did not wish to exercise that
right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- In
1995 the applicants concluded a sales contract with three individuals
buying shares from the A. company (“the company”).
- On
13 September 1996 the first applicant brought a civil action
requesting the Skopje Court of First Instance (“the
first-instance court”) to order the company to register the
sales contracts in its book of shareholders and to provide them with
a certificate of title. On 22 November 1996 the
second applicant and Mr Mile Stojčevski
joined the first applicant’s claim. During the
proceedings, the applicants specified their claim on three occasions.
-
Between 25 June 1997 and 27 November 1998, the
first-instance court ordered four adjournments, none of which was
requested by the applicants.
- On
11 January 1999 the first-instance court dismissed the applicants’
claim finding that they had failed to comply with the
applicable legislation and that the company had not had a
capacity to stand in the proceedings. It also dismissed their request
of 27 May 1998 for an interim measure prohibiting the vendors to
dispose of the shares.
- On
12 April 2000 the Skopje Court of Appeal partly upheld the
applicants’ appeal of 3 November 1999 and remitted the case for
a renewed examination.
- On
18 December 2001 the first-instance court dismissed the applicants’
claim. The decision was served on them on 22 August 2002.
- On
19 March 2003 the Skopje Court of Appeal dismissed the applicants’
appeal. They were served with the decision on 7 May 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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 the
applicants’ complaints.
- The
Court recalls that in a number of cases in which an applicant died in
the course of the proceedings, the Court has taken into account the
statements of the applicant’s heirs or of close family members
expressing the wish to pursue the proceedings before the Court. This
is particularly the case concerning applications which were
introduced by the applicant himself and only continued by his widow
after his subsequent death.
- As
to Mr Mile Stojčevski, the Court notes that he died before the
introduction of the application. There is no evidence that the first
applicant had any authority to defend his interest or that Mrs
Stojčevska stepped in at any stage of the domestic proceedings.
In such circumstances, it considers that she does not have the
requisite standing under Article 34 of the Convention (see, mutatis
mutandis, Dimitrovska v. the former Yugoslav Republic
of Macedonia (dec.), no.21466/03, 30 September 2008).
- It
follows that the application, in part concerning Mr Mile Stojčevski,
is incompatible ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3 and
must be rejected in accordance with Article 35 § 4.
- In
the circumstances of the present case, the Court considers that the
second applicant’s widow has the requisite locus standi
under Article 34 of the Convention in respect of his complaint about
the length of the proceedings (see Stojkovic
v. the former Yugoslav Republic of Macedonia,
no. 14818/02, § 25, 26, 8 November 2007).
- Therefore,
the Court concludes that the length complaint raised by the first and
second applicant is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further finds 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, including the nature of the dispute, the changes of the
applicable legislation and the applicants’ behaviour. As to the
latter, they submitted that they had contributed considerably to the
length of the proceedings by specifying their claim on several
occasions, requesting an interim measure and failing to attend three
hearings.
- The
applicants did not comment on the Government’s arguments about
the length of the proceedings.
2. The Court’s consideration
- The
Court notes that in respect of the first applicant, the proceedings
started on 13 September 1996 and for the second
applicant, on 22 November 1996. They ended on 7 May 2003
when the Skopje Court of Appeal’s decision was served on the
applicants.
- However, as noted by the Government, the period which
falls within the Court’s jurisdiction began only 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 about six months
for one level of jurisdiction.
- The
proceedings lasted over six years and seven months, of which nearly
six years and one month fall within the Court’s temporal
jurisdiction for two 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 (see
Velova v. the former Yugoslav Republic of Macedonia, no.
29029/03, § 30, 6 November 2008).
- The
Court considers that the case was not complex. No convincing
arguments were provided in this respect.
- It
further finds that no delays were attributable to the applicants as
they attended all scheduled hearings. Submissions specifying the
claim or their request for an interim measure cannot be considered to
their detriment (see Dimitrieva v. the former Yugoslav
Republic of Macedonia, no. 16328/03, § 35,
6 November 2008).
- On
the other hand, the Court finds significant delays imputable to the
national courts. In this connection, it notes that it took nearly two
years and two months for the first-instance court to decide the
applicants’ claim. Furthermore, nearly one year and five months
lapsed for the service of the two first-instance court’s
decisions (see paragraphs 9-11 above).
30. 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.
31. There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
32. The
applicants further complained under Article 6 of the Convention that
the courts had refused
their request for interim measure, disregarded evidence and
incorrectly interpreted the domestic law.
33. They
also alleged a violation of Article 1 of
Protocol No. 1 given the company’s refusal to register them as
shareholders.
34. The
Court has examined these 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.
35. 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.”
- The
applicants did not submit any claim for just satisfaction in
accordance with Rule 60 of the Rules of Court. In these
circumstances, the Court makes no award under Article 41 of the
Convention (see, mutatis mutandis, Jankulovski v. the
former Yugoslav Republic of Macedonia, no. 6906/03, §
41, 3 July 2008).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the first and second applicants’ 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 first and second
applicants.
Done in English, and notified in writing on 26 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
