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FIFTH
SECTION
CASE OF KANGOVA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 17010/04)
JUDGMENT
STRASBOURG
8
January 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 Kangova 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17010/04) 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 Blagorodna Kangova (“the applicant”), on 27 April
2004. By letter of 27 December 2007 the applicant’s
husband informed the Registry that she had died on 16 November 2007
and that he wished to pursue the application.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
6 December 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
a. Proceedings concerning the applicant’s compensation claim
- On
4 February 1998 the applicant brought a civil claim against her
employer, seeking compensation for unpaid salary and social security
contributions. On 6 July 2000 the employer was divided into three
separate companies (“the successors”).
- Between
16 October 1998 and 10 September 2001 the first instance court
scheduled fifteen hearings, none of which was adjourned on the
applicant’s request. It ordered expert examination of the
applicant’s claim and heard evidence from witnesses. The
employer’s counter claim against the applicant was dismissed
five months after it had been submitted. During the proceedings, the
applicant made more specific claims on four occasions.
- On
10 September 2001 the Gevgelija Court of First Instance allowed the
applicant’s claim and ordered the successors jointly to pay her
unpaid salary and to pay social security contributions to the Pension
and Disability Insurance Fund. The total award amounted to 486, 557
Macedonian denars (MKD) (approximately 7, 940 euros) plus trial
costs. This decision was served on the applicant on 26 June 2002.
- On
11 July 2002 the successors appealed. On 7 October 2002 the applicant
submitted her arguments in reply.
- On
24 October 2002 the Gevgelija Court of First Instance dismissed the
successors’ appeal as having been submitted out of time.
- On
22 November 2002 the successors appealed, arguing that the
first-instance court had wrongly calculated the time-limit. On 26
June 2003 the first-instance court ordered the successors to pay the
court’s fees.
- On
30 December 2003 the successors withdrew their appeal.
- Between
1 April and 26 June 2004 the applicant requested the first-instance
court to expedite the proceedings on three occasions.
- On
15 July 2004 the Gevgelija Court of First Instance rejected the
successors’ appeal as having been withdrawn.
- On
21 September 2004 the first-instance court’s decision of
10 September 2001 became final.
b. Insolvency proceedings against the successors
- Between
March 2002 and June 2003 three separate sets of insolvency
proceedings were initiated in respect of the successors. The last
successor was liquidated in September 2003. The receiver was ordered
to enforce the liquidation by public sale of that successor’s
assets. The applicant filed a request to have her claim recognised
only in respect of that successor. On 9 September 2003 the
first-instance court partly allowed the applicant’s claim. No
information has been provided as to what actions were taken in
respect of the court’s sale order.
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
Court accepts that the applicant’s husband has the requisite
locus standi under Article 34 of the Convention in respect of
the applicant’s complaint about the length of the proceedings
(see Stojkovic v. the former Yugoslav Republic of Macedonia,
no. 14818/02, §§ 25 and 26, 8 November 2007).
- 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 stated that there had been complex circumstances related
to the case, including the expert examination and the employer’s
counter claim; the latter’s division and the insolvency
proceedings in respect of the successors.
- As
to the applicant’s behaviour, they argued that she had
contributed to the length of the proceedings by having specified her
claim on four occasions. They also maintained that the successors had
abused procedural rights, delaying the proceedings.
- Concerning
the conduct of the national courts, they submitted that no delays
were attributable to them. The only exceptions concerned the fixing
of the first hearing; the service of the first-instance court’s
decision of 10 September 2001 and that court’s decision
upon the successors’ withdrawal of the appeal (see paragraphs
5, 6, 10 and 12). However, those delays did not add much to the
length of the proceedings.
- The
applicant’s husband contested the Government’s arguments
about the complexity of the case and the applicant’s alleged
contribution to the length of the proceedings. She maintained that
the courts had not conducted the proceedings in a diligent manner and
that their protracted length had prevented her from recovering her
claim before the successors went into liquidation.
2. The Court’s consideration
- The
Court notes that the proceedings in question started on 4 February
1998 and ended on 21 September 2004 when the first-instance court’s
decision became final. During this period, the first-instance court
gave one decision on the merits and two decisions concerning the
admissibility of the successors’ appeal. They therefore lasted
six years, seven months and seventeen days for three levels of
jurisdiction.
- 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 does not consider that the case required examination of
complex issues.
-
It further finds that no delays are attributable to the applicant.
Her submissions specifying her claim did not add substantially to the
length of the proceedings. Furthermore, she cannot be held
responsible for delays attributable to the successors.
-
On the other hand, the Court considers that the first-instance court
did not display the requisite vigilance when deciding the applicant’s
case. It is the Court’s finding that the delays to which the
Government conceded contributed considerably to the length of the
proceedings. It further observes that it took over four years for
that court to decide on the merits the applicant’s case (see
paragraphs 4 and 6 above). In addition, the preliminary assessment of
the admissibility of the successors’ appeal, which that court
carried out, was also longer than necessary. In this connection, the
Court notes that it took two years for that court to declare the
successors’ appeal as having been withdrawn. The overall time
which elapsed before the first-instance court cannot be regarded as
reasonable.
-
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 5 of the Convention that
her right to social security had been breached.
- The
Court notes that the Article invoked does not provide for a right to
social security. Accordingly, this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
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’s husband claimed MKD 486,557 plus interest in
respect of pecuniary damage. This figure refers to the amount of the
applicant’s claim established in the proceedings in question.
He claimed that his wife has been prevented from recovering her claim
from the assets of the liquidated successors. He asserted that
similar claims from other co-workers had been accepted within a
reasonable time and consequently recovered before the successors were
declared bankrupt. The applicant’s husband also claimed EUR
20,000 in respect of non-pecuniary damage for the anguish, stress and
deterioration of the applicant’s health due to the length of
the proceedings.
- The
Government contested these claims as unsubstantiated, arguing that
there was no causal link between the alleged violation and the
pecuniary damage claimed. By making that claim, the applicant’s
husband was in fact asking the Court to decide her case as brought
before the national courts.
- 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, it awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed MKD 9,000 for the costs and expenses incurred
before the domestic courts. She did not seek reimbursement of the
costs and expenses incurred in the proceedings before the Court.
- The
Government contested this 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 Kostovska v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 62, 15 June
2006). 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;
- 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), 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[s] 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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
