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FIFTH
SECTION
CASE OF KALANOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 31391/03)
JUDGMENT
STRASBOURG
17
December 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 Kalanoski 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 24 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31391/03) 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 Ilija Kalanoski (“the applicant”),
on 17 September 2003.
- The
applicant was represented by Mr M. Popeski, a lawyer
practising in Ohrid. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
17 November 2006 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).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932 and lives in Skopje.
- On
5 May 1991 the then Municipal Court of Struga (“the first-instance
court”) ruled partly in the applicant’s favour ordering
the defendant, Mr J.T., to pay him
compensation. On 29 December 1992 the then District Court of Bitola
overturned the decision and increased the amount of the award.
- On
1 February 1993 the applicant sought enforcement before the
first-instance court by an inventory and public sale of the
defendant’s (“the debtor”) movable property.
- According
to the applicant, his request for enforcement was granted on 3
February 1993, but no formal decision has been ever served on him.
- Between
17 April 1993 and 18 April 1994 respectively, the applicant
complained to the President of the first-instance court and to the
State Judicial Council about the court’s inactivity. No answer
was provided.
- On
23 June 1994 an expert determined the amount of the applicant’s
claim with interest.
- According
to the Government, in May 1999 the enforcement proceedings were
terminated as being resolved “in other way” (“на
друг начин”)
corresponding to the common practice of the courts and extract of the
court’s registry. No record was made about the termination of
the proceedings. In or about March 2000, the case-file was destroyed.
- According
to the applicant, on 13 December 2006 the first-instance
court intended to restore the case by requesting him to resubmit
relevant documents. The Government did not dispute that assertion.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied the right of access to a
court due to the non-enforcement of his claim. He complained under
Article 6 of the Convention, the relevant part
of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The
Government objected that the applicant had not complied with the
six-month time-limit, which had started to run since March 2000, when
the case-file had been destroyed. They further argued that the
application was an abuse of the right of application.
- The
applicant contested the Government’s objections.
15. The Court reiterates that the six-month period will run from
the date on which a decision is actually served (see Worm
v. Austria (dec.), no. 22714/93, 7 November 1995).
In this connection, it observes that the Government did not provide
any evidence that the applicant had been served with a decision in
respect of the termination of the enforcement proceedings or the
destruction of the case-file.
- The
Government’s arguments that the application was an abuse of the
right of application are also unsubstantiated.
- It
follows that the Government’s objections must be rejected.
- The
Court further considers that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
19. 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 the applicant had not demonstrated any
interest in the enforcement proceedings and had failed to
request their expedition in a proper manner (see paragraph 8 above).
20. The
applicant contested the Government’s arguments.
2. The Court’s consideration
- The
Court reiterates that the execution of a judgment given by any court
must be regarded as an integral part of the “trial” for
the purposes of Article 6 of the Convention (see Jankulovski
v. the former Yugoslav Republic of Macedonia, no.
6906/03, § 33, 3 July 2008). Moreover, it considers
that the State has a positive obligation to organise a system for
enforcement of judgments that is effective both in law and in
practice and ensures their enforcement without undue delay (see
Pecevi v. the former Yugoslav Republic of Macedonia, no.
21839/03, § 29, 6 November 2008). However, the Court notes
that State responsibility for enforcement of a judgment against a
private party extends no further than the involvement of State bodies
in the enforcement procedures. Once the enforcement procedures were
closed by a court in accordance with the national legislation, the
responsibility of the State ended (see Martinovska v. the former
Yugoslav Republic of Macedonia, (dec.), no. 22731/02,
25 September 2006).
- The
Court notes that the enforcement proceedings started on 1 February
1993 when the applicant sought enforcement of his claim. They
formally ended in March 2000 when the case-file was destroyed. It
appears that on 13 December 2006 the applicant was only informed
about the earlier termination.
23. The
impugned situation has thus lasted nearly seven years and one month
plus six years until the applicant was informed, of which
approximately nine years fall within the Court’s jurisdiction
ratione temporis
(since the ratification of the Convention by the respondent State on
10 April 1997).
- 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 Jankulovski v. the
former Yugoslav Republic of Macedonia, cited above) and notes
that on 10 April 1997 the enforcement proceedings had
already been pending for four years, two months and nine days.
- The
Court notes that there was no direct examination of the applicant’s
initial request for enforcement or that any action was taken between
1997 and 2006 (“the relevant period”), the latter being
the year when he became aware about the earlier termination of the
enforcement proceedings. Moreover, the Government did not provide any
explanation in respect of the court’s failure to properly
inform the applicant about the termination of the proceedings, which
consequently had deprived him of the possibility to challenge it.
- As
to the applicant’s behaviour, the Court observes that his
requests for expedition of the enforcement proceedings although
unanswered, are a factor in his favour. However, his last activity in
respect of the proceedings was in June 1994 (see paragraph 9 above),
and there is no evidence that later he showed any interest about
their outcome.
- Against
this background, the Court considers that by refraining for taking
adequate and effective measures to enforce the applicant’s
claim within the relevant period the domestic court deprived the
provisions of Article 6 § 1 of the Convention of all useful
effect.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
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 691,000 euros (EUR) in
respect of pecuniary damage. That figure corresponded to the amount
awarded in the substantive proceedings together with interest. He
also claimed EUR 20,000 for non-pecuniary damage for emotional
suffering.
- The
Government contested these claims as unsubstantiated and excessive
arguing that there was no causal link between the alleged violation
and the pecuniary damage claimed.
- The
Court notes that the applicant did not submit any evidence that at
the relevant time, namely when the case-file was destroyed, the
debtor, being a private individual, had sufficient funds to honour
his claim. In these circumstances, the Court finds no causal link
between the pecuniary damage claimed and the violation found; it
therefore rejects this claim.
- On
the other hand, the Court accepts that the
applicant suffered emotionally due to the first-instance court’s
failure to enforce the final decision of 29 December 1992.
Ruling on an equitable basis, it awards him EUR 600 in respect of the
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 700 for the costs and expenses incurred
before the domestic courts and the Court.
He did not submit any supporting documents.
- The
Government contested this claim as excessive and unsubstantiated.
36. The
Court points out that under Rule 60 of the Rules of Court “the
applicant must submit itemised particulars of all claims, together
with any relevant supporting documents failing which the Chamber may
reject the claim in whole or in part” (see Parizov v.
the former Yugoslav Republic of Macedonia, no. 14258/03, § 72,
7 February 2008).
37. The
Court notes that the applicant did not provide any supporting
documents. It therefore rejects his claims under this head.
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
1. Declares the application admissible;
2. 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, EUR 600 (six
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, 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 17 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
