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FIFTH
SECTION
CASE OF
BOGDANSKA DUMA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 24660/03)
JUDGMENT
STRASBOURG
7
May 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 Bogdanska Duma v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 14 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24660/03) 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,
Ms Jasna Bogdanska Duma (“the applicant”), on 25
July 2003.
- The
applicant was represented by Mr J. Naumov, a lawyer practising in
Skopje. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska Gerovska.
- On
24 October 2006 the
President of the Fifth Section decided to communicate to the
Government the complaints concerning the length of the first set of
proceedings and the alleged interference with the applicant’s
rights under Article 1 of Protocol No. 1 concerning the second set of
proceedings. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Skopje.
A. Factual background
- On
1 February 1993 Mr. F.D., the applicant’s former husband,
bought a state-owned apartment and a garage (“the property”).
By a deed of gift of 29 December 1994 (“the 1994 gift”),
Mr F.D. transferred one notional half of the property into the
applicant’s possession. The spouses divorced in 1996. By court
decisions of 18 April and 5 September 2001 respectively, the 1994
gift was rescinded.
- The
present case concerns two sets of proceedings concerning the property
at issue.
B. Proceedings concerning the title to the property
(“the first set of proceedings”)
- On
13 July 1995 Mr H.D. and Mrs V.D., Mr F.D.’s parents (“the
plaintiffs”), brought a civil action against the applicant and
Mr F.D. to establish their title to the property and to rescind the
1994 gift. The plaintiffs alleged that they had transferred to their
son the right to buy the property and that they had paid the price.
- Of
six hearings scheduled between 3 November 1995 and 19 May 1997,
none was rescheduled on the applicant’s request.
- Sixteen
hearings fixed between 19 May 1997 and 20 November 2000 were
adjourned because of incorrect service of the court summons, late
exchange of applications by the parties, belated submissions or the
failure of the national authorities and the parties to respond to
court orders in time. A hearing fixed for 25 May 1998 was postponed
due to the applicant’s absence for work-related reasons.
- On
20 November 2000 the Skopje Court of First Instance upheld the
plaintiffs’ claim and recognised their title to the property.
It rescinded the 1994 gift and declared that Mrs V.D. had the title
to one notional half of the property. The court established that Mr
H.D. had tenancy of the property since 1972 and that the plaintiffs
had authorised the defendants to buy the property under the condition
of caring for them and living under the same roof. As the applicant
had divorced her husband and ceased to live with the plaintiffs, the
court held that the right to buy the apartment remained groundless
and considered it as if it had not been established.
- On
28 June 2001 the Skopje Court of Appeal accepted an appeal by the
applicant and remitted the case for a fresh consideration. It
established that the lower court had not given sufficient reasons for
its decision. It further ordered a stay of the proceedings pending
assessment of the validity of the sale agreement of 1 February 1993,
the subject of other proceedings.
- Between
19 November 2001 and 15 September 2005 the first-instance court
listed twenty-three hearings which were re-scheduled for similar
reasons as those described in paragraph 9 above. The applicant did
not attend four hearings. During this time, the applicant claimed
title to four fifths of the property, as a joint property acquired
through marriage. She further proposed an out-of-court settlement on
two occasions and requested the court to expedite the proceedings.
- The
proceedings resumed on 4 December 2006 when a new judge was assigned
to sit in the case. The court listed six hearings until 18 May 2007.
The proceedings are still pending before the Skopje Court of First
Instance.
C. Proceedings for annulment of a deed of gift of 2001
(“the second set of proceedings”)
- On
4 April 2002 Mr F.D. requested annulment of a deed of gift of 18 July
2001 (“the 2001 gift”) under which the applicant had
transferred into the possession of their two daughters her notional
half of the property. Referring to the annulment of the 1994
contract, Mr F.D. claimed that the applicant had not been entitled to
dispose of the property. On 5 April 2001 Mr F.D. extended his claim
against their daughters. On 17 November 2002, one of the daughters,
Ms I.D., came of age.
- On
22 November 2002 the Skopje Court of First Instance granted Mr F.D.’s
action and annulled the 2001 gift. It further ordered their daughters
to restore the property into Mr F.D.’s possession. Lastly, it
ordered the applicant not to dispose of the property. The court
established that the applicant had made the 2001 gift while the
proceedings regarding the 1994 gift had been pending on appeal. It
ruled that the applicant accordingly had known or ought to have known
that she could not make the 2001 gift while the proceedings in
respect of the 1994 gift were pending. It dismissed the applicant’s
objection that her lawyer had not been provided with explicit
authority to represent Ms I.D. In this respect, it held that the
applicant had been her daughters’ statutory guardian and they
all acted as a single party to the proceedings. The court concluded
that they had not had conflicting interests, but that the applicant
had acted on behalf of her daughters.
- On
27 March 2003 the Skopje Court of Appeal upheld the lower court’s
decision concerning the annulment order and injunction. It found no
reasons to depart from the established facts and legal reasoning
given by the lower court in respect of the deed of gift. It ruled,
however, that the lower court had wrongly ordered the applicant’s
daughters to restore the property into Mr F.D.’s possession.
The applicant unsuccessfully requested the public prosecutor to lodge
with the Supreme Court a request for the protection of legality.
- On
23 May 2003 the Skopje Court of First Instance dismissed the
remainder of Mr F.D.’s claim.
- These
proceedings ended on 14 October 2004 when the first-instance court’s
decision concerning trial costs became final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first set of 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
22. 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 stated that there had been complex circumstances
related to the case, including the number of parties and claims and
that other property-related proceedings had been pending between the
same parties.
- They
further stated that the parties had contributed considerably to the
length of the proceedings by failing to respond to the courts’
orders in good time and abusing procedural rules related to court
summons.
- As
to the national courts, the Government argued that they had proceeded
with the case with due diligence and that the scheduled hearings had
been held regularly and without any delays, the only exception being
when a new judge was assigned to decide the case (see paragraph 13
above).
- The
applicant contested the Government’s arguments concerning the
complexity of the case and her contribution to the length of the
proceedings. She further maintained that the domestic courts bore
full responsibility for the protracted length of the proceedings
having allowed the plaintiffs to abuse the proceedings.
2. The Court’s assessment
- The Court notes that the proceedings started on 13
July 1995 when the plaintiffs requested the courts to decide their
claims. 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 almost one year and nine months at one level
of jurisdiction.
- The
impugned proceedings have not yet ended, since the case awaits
consideration at first instance. They have already lasted for over
thirteen years and seven months of which twelve years and four days
fall within the Court’s temporal jurisdiction.
- 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 number of parties and claims involved
in the case increased its complexity, but these factors cannot,
in themselves, explain the length of the proceedings.
- It
further cannot find, apart from incidental absences from several
hearings (see paragraph 12 above), which did not add much to the
length of the proceedings, any adjournments imputable to the
applicant.
- On
the other hand, the Court notes that there were many substantial
delays attributable to the authorities. In this connection, it
observes that most adjournments were ordered because the
first-instance court could not secure the presence of the parties
(see paragraph 9 above), for which it bore sole responsibility (see,
mutatis mutandis, Dika v. the former Yugoslav Republic of
Macedonia, no. 13270/02, §§ 56 and 58, 31 May 2007). It
finds it particularly striking that that court has not yet given its
ruling, even though the case was remitted for reconsideration in June
2001 (see paragraph 11 above). Furthermore, the proceedings lay
dormant for over one year and two months after the hearing dated 15
September 2005 (see paragraphs 12-13 above), a period during which
the first-instance court did not take any procedural step.
- 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 Kostovska v. the former Yugoslav Republic of Macedonia,
no. 44353/02, § 41, 15 June 2006, § 41).
- 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. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE
CONVENTION
- The
applicant alleged a violation of her property rights and those of her
daughters, relying on Article 1 of Protocol No. 1, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The first set of proceedings
- The Court notes that these proceedings, which concern
determination of the title to the property, are still pending. In
this respect, any complaint under Article 1 of Protocol No. 1 related
to the outcome of the proceedings is premature.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. The second set of proceedings
1. The parties’ submissions
- The
Government maintained that the annulment of the 2001 gift did not
amount to interference with the applicant’s property rights.
The applicant became, under the 1994 gift, the registered owner of a
notional half the property. The annulment of that gift entailed loss
of the applicant’s title to that part. In addition, they
submitted that the applicant had not claimed a joint title to the
property, acquired through marriage, in any of the proceedings
related to the property. It was only on 5 April 2002 that she made
such a claim in the first set of proceedings. In any event, the title
to the property was to be determined in this later set of
proceedings, which were still pending.
- The
applicant reaffirmed her complaints.
2. The Court’s assessment
- The
Court notes that the impugned proceedings concerned the annulment of
the 2001 gift under which the applicant transferred a notional half
of the property into her daughters’ possession. The domestic
courts found that she had not acted in good faith since she had made
the 2001 gift when the 1994 gift, conferring on her the title to that
part of the property, had been rescinded at first instance.
- Under
these circumstances, the Court observes that domestic courts’
regulation of property disputes according to domestic law does not,
by itself, raise any issues under Article 1 of Protocol No. 1 to
the Convention. It finds no indication in the present case that the
conclusion of the domestic courts interfered with the applicant’s
property rights contrary to Article 1 of Protocol No. 1 to the
Convention. The same concerns the daughters’ proprietary
rights, if any.
- The
Court further notes that the applicant, although legally represented,
did not claim before the courts that she had a joint title to the
property, as acquired through marriage. In this context, she failed
to exhaust the domestic remedies.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also invoked Article 8 and Article 5 of Protocol No. 7 of
the Convention. Lastly, she complained under Article 10 that Ms I.D.
had not been summoned to attend hearings in person after she had come
of age.
- The
Court has examined these complaints. However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that 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.
IV. 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
applicant did not submit a claim for just satisfaction, as specified
under Rule 60 of the Rules of Court. Accordingly, the Court considers
that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the first set of 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 set of
proceedings
Done in English, and notified in writing on 7 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
