SASO GORGIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 49382/06 [2012] ECHR 726 (19 April 2012)


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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> SASO GORGIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 49382/06 [2012] ECHR 726 (19 April 2012)
    URL: http://www.bailii.org/eu/cases/ECHR/2012/726.html
    Cite as: [2012] ECHR 726

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    FORMER FIFTH SECTION







    CASE OF SAŠO GORGIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA


    (Application no. 49382/06)









    JUDGMENT





    STRASBOURG


    19 April 2012



    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 Sašo Gorgiev v. the former Yugoslav Republic of Macedonia,

    The European Court of Human Rights (Former Fifth Section), sitting as a Chamber composed of:

    Peer Lorenzen, President,
     Karel Jungwiert,
     Mark Villiger,
     Isabelle Berro-Lefèvre,
     Mirjana Lazarova Trajkovska,
     Ganna Yudkivska,
     Julia Laffranque, judges,
    and Claudia Westerdiek, Section Registrar,

    Having deliberated in private on 27 March 2012,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

    1.  The case originated in an application (no. 49382/06) 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 Sašo Gorgiev (“the applicant”), on 27 November 2006.

  1. The applicant was represented by Mr P. Šilegov, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

  2. The applicant alleged, in particular, that the State had been responsible under Article 2 of the Convention for a life-threatening action taken by R.D., a State agent.

  3. On 5 October 2009 the President of the Fifth Section decided to communicate this complaint to the Government and to grant priority to the application under Rule 41 of the Rules of Court. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

    4. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1972 and lives in Skopje.

    5. A.  Background of the case

  5. The applicant worked as a waiter in a bar in Skopje. At 3.50 a.m. on 6 January 2002, R.D., a police reservist, fired a shot in the bar which hit the applicant in the chest. According to a medical certificate of 12 September 2002 issued by Clinical Centre “Skopje”, the applicant was urgently admitted in a “serious condition” (тешка општа состојба). The injuries sustained were described as follows: broken right clavicle and four ribs, injury to the sub clavicle artery, internal haemorrhaging and seized brachial plexus nerves. His right arm was paralysed. The conclusion was that the applicant had sustained serious bodily injury with life-threatening damage and lasting consequences (витална загрозеност и трајни последици). He was operated on twice, the second time in April 2002 in the Clinical Centre in Belgrade, Serbia.

    6. B.  Criminal proceedings against R.D.

  6. On 27 March 2003 the Skopje Court of First Instance (“the trial court”) convicted R.D. in absentia of “serious crimes against security” (тешки дела против општата сигурност). He was sentenced to two years’ imprisonment. After the court heard oral evidence from R.D., the applicant and six witnesses and consulted other material evidence, it held that R.D., while intoxicated, had unintentionally pulled the trigger of his official gun and shot the applicant, who had been at a distance of one metre. The applicant was advised to pursue his compensation claim by means of a separate civil action. The decision became final on 8 May 2003.

  7. R.D. started serving his sentence on 6 June 2008. On 23 June 2008 the trial court, at R.D.’s request, reopened the proceedings. On 12 March 2009 the trial court found R.D. guilty again and sentenced him to two years’ imprisonment suspended for four years. No information was provided as to whether this latter decision was appealed and became final.

    8. C.  Civil proceedings for damages

  8. On 11 November 2002 the applicant, represented by Mr P. Šilegov, brought a civil action against the State/Ministry of the Interior “(the Ministry”) seeking compensation for pecuniary and non-pecuniary loss related to the injury sustained by R.D. He claimed that the State should be held responsible, given the fact that R.D., instead of being on duty in a police station, had shot him in the bar. He had used his official gun and had been in uniform. He claimed 28,000,000 Macedonian denars (MKD) in respect of non-pecuniary damage and MKD 208,480 for pecuniary damage (expenses related to his medical treatment).1

  9. After five adjournments, on 12 December 2003 the Skopje Court of First Instance dismissed the applicant’s claim, finding that the Ministry lacked the requisite standing to be sued for the damage caused by R.D., who, being a police reservist, was regarded a State official. The court established that between 7.30 p.m. on 5 January 2002 and 7.30 a.m. on 6 January 2002, R.D. had been on duty in a police station in Skopje. He was assigned to stand guard (службена задача – стража) between midnight. on 5 January and 1 a.m. and between 6 a.m. and 7 a.m. on 6 January 2002. After 1 a.m. on 6 January 2002, instead of returning to the police station, R.D. had gone to the bar of his own volition, without informing his superior or the respondent officer. He had been in uniform and had his official gun. In the bar, in the presence of other guests and under the influence of alcohol, he had pulled out the gun and shot the applicant who had been in front of him at a distance of about 1.5 m. The court found that the applicant suffered damage as a result of R.D.’s action. However, in order for the Ministry to be held responsible under section 157 of the Obligations Act (see paragraph 19 below), the court said that:

    10. “... certain conditions need to be met – damage must be caused by an official (овластено службено лице), it should be sustained by a physical or legal person and in particular, it has to be caused by an official in the performance of his or her duties. It also has to result from an unlawful action. The defendant (the State) would be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties. An action would be regarded as carried out in the performance of a duty if it was part of the duties (функција) of the official. It concerns harmful actions taken within working hours, in his official capacity and as part of his official duties. Damage may be caused outside official duties, but there must be a causal link with the performance of the duty or the duty itself ... in the present case, R.D. was not in the bar in an official capacity ... so that damage was not caused in connection with the performance of the Ministry’s duties, although it was caused at a time when R.D. was supposed to be on duty. At the critical time and place R.D. was not acting in an official capacity but as a private person, despite the fact that it was within working hours, he was in uniform and used his official gun. R.D. is responsible for the action taken and damage caused. There is no causal link between his action and his duty ...

    The fact that (R.D.) was in uniform and used his official gun does not mean, in itself, that he was acting in an official capacity. R.D. did not use the gun in connection with the performance of his duties, but as a guest in the bar ...

    At the time when the damage occurred, R.D., as a police reservist, was an adult and trained to use the gun. The defendant, as the owner of the gun, is released, under section 163 (2) of the Obligations Act, from responsibility, given the fact that the damage occurred solely as a result of an action by its agent, which could not have been foreseen nor its consequences prevented or removed.”

  10. The court concluded that the applicant remained entitled to claim, under section 141 of the Obligations Act (see paragraph 18 below), compensation from R.D.

  11. On 3 March 2004 the applicant appealed, arguing that the Ministry was to be held responsible for R.D.’s actions, as he had acted while on duty, had been in uniform and had fired his official gun. He derived the Ministry’s responsibility from section 103 of the Employment Act (see paragraph 22 below) under which the Ministry could claim reimbursement from R.D. Lastly, he submitted that he had suffered irreparable damage from the incident, as his right arm had become paralysed permanently.

  12. On 27 April 2004 the Skopje Court of Appeal dismissed the applicant’s appeal, finding no grounds to depart from the lower court’s reasoning that R.D.’s actions in the bar were not related to his official duties as a police officer. It continued that when he shot the applicant R.D. had not been acting as a police officer nor had he been performing his official duties. There was accordingly, no responsibility on the part of the Ministry. The court further confirmed the applicant’s entitlement to claim compensation from R.D.

  13. On 21 July 2004 the applicant lodged with the Supreme Court an appeal on points of law (ревизија) arguing, inter alia, that the Court of Appeal had not addressed his arguments about the Ministry’s responsibility under the Employment Act.

  14. On 31 May 2006 the Supreme Court dismissed the applicant’s appeal on points of law, reiterating the reasons given by the lower courts.

    15. II.  RELEVANT DOMESTIC LAW AND PRACTICE

    A.  Obligations Act

  15. Section 141 of the Obligations Act sets out the general principle for claiming civil compensation.

  16. Section 157 defines the employer as responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer could seek reimbursement of the compensation awarded to the victim from the employee if the latter caused the damage intentionally or negligently.

  17. Under section 160, the owner of a dangerous item (опасен предмет) is responsible for any damage caused by it.

  18. Section 163 (2) provides that the owner of a dangerous item can be excluded from responsibility if it can be shown that the damage was caused exclusively by an action taken by the victim or a third person, which it could not have foreseen and whose consequences could not have been prevented or removed.

    19. B.  1993 Employment Act

  19. Under section 103 of the Employment Act of 1993, as relevant at that time, an employer was responsible for any damage caused by its employee while performing his or her duties or in relation to them. The employer could seek reimbursement of the awarded compensation from the employee if the latter caused the damage intentionally or negligently.

    20. C.  Internal Affairs Act (Official Gazette no. 19/1995)

  20. Section 24 of the Internal Affairs Act, valid at the time, specified the agents who were regarded as State officials.

  21. Under section 26, State officials were required to perform their duties at all times, regardless as to whether they were on or off duty.

  22. In a state of war or emergency, the Ministry could call up reservists in order to ensure public safety and prevent massive disorder (section 45 (2) of the Internal Affairs Act). Reservists could be recruited for training or practice. During the period of service, reservists were regarded State officials within the meaning of section 24 of the Act (section 46).

    23. D.  Relevant domestic case-law

  23. The Government provided a copy of a first-instance court decision concerning a compensation claim submitted against the Ministry and a police officer who had negligently fired his official gun inside the Ministry building, as a result of which the claimant sustained bodily injuries. The first-instance court found the police officer directly responsible and ordered him to pay the damages. It further dismissed the claim against the Ministry for lack of standing to be sued. No information was provided as to whether this decision became final (П.бр.1274/2007 of 2 July 2008). The police officer in this case was convicted of “serious crimes against security” and sentenced to a suspended prison term (К.бр.751/06 of 21 February 2007).

    24. III.  RELEVANT INTERNATIONAL LAW

    A.  Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders at Havana, Cuba, 27 August to 7 September 1990 (“the Basic Principles”)

  24. Article 11 of the Basic Principles provides, inter alia, that:

    25. “Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

    (a)  Specify the circumstances under which law enforcement officials are authorised to carry firearms...

    (b)  Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

    ...

    (d)  Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.”

    B.  Recommendation (2001) 10 of the Committee of Ministers of the Council of Europe to member States on the European Code on Police Ethics (“the Code”)2 and Explanatory Memorandum of the Recommendation

  25. Article 37 of the Code provides that “the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective”.

  26. The commentary to Article 37 of the Code reads inter alia as follows:

    27. “...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...”

    THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

  27. The applicant complained under Article 2 of the Convention that he had been a victim of a life-threatening action taken by R.D., a State official. He also complained under Article 6 that the domestic courts had failed to recognise the State’s responsibility. The Court, being the master of the characterisation to be given in law to the facts of the case (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), considers that the applicant’s submissions under this head could only raise an issue under Article 2 of the Convention, which reads as follows:

    28. “1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

    2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

    (a)  in defence of any person from unlawful violence;

    (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

    (c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

    A.  Admissibility

    1.  Applicability of Article 2 of the Convention

  28. The Court notes that at the outset the force used against the applicant was not in the event lethal. This does not exclude an examination of the applicant’s complaints under Article 2 of the Convention. In fact, the Court has already examined complaints under this provision where the alleged victim had not died as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004 XI; Osman v. the United Kingdom, 28 October 1998, §§ 115-122, Reports of Judgments and Decisions 1998 VIII; and Yaşa v. Turkey, 2 September 1998, §§ 92-108, Reports of Judgments and Decisions 1998 VI).

    29. 2.  Non-exhaustion of domestic remedies

  29. The Government objected that the applicant, who was legally represented, had not exhausted all effective remedies. In particular, he had not claimed compensation from R.D., although he had been advised to do so by the first- and second-instance courts (see paragraphs 11 and 13 above). Furthermore, the applicant had claimed damages only in relation to the injuries sustained, but he had failed to raise his Article 2 complaints that he introduced with the Court.

  30. The applicant contested the Government’s arguments.

    31. 3.  Conclusion

  31. The Court considers that the issue of applicability of Article 2 of the Convention and the objection raised by the Government are closely linked to the merits of the applicant’s complaint under this head. Consequently, the examination of these issues should be joined to the assessment of the merits of that complaint.

  32. It further considers that this complaint, including the question of applicability of Article 2 of the Convention and the objection of non exhaustion raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be declared admissible.

    33. B.  Merits

    1.  The parties’ submissions

  33. The applicant reaffirmed that the State should be held responsible for the unlawful action of R.D. That R.D. was held liable under the criminal law did not release the State from its responsibility in relation to the damage that R.D. had caused while being on duty. The first-instance court’s decision submitted by the Government (see paragraph 26 above) was yet stronger evidence that the relevant law had been applied wrongly by the domestic courts.

  34. The Government submitted that R.D. had not intended to kill the applicant. That had been established in the course of the criminal proceedings against him (see paragraph 7 above). However, they conceded that, in view of the seriousness of the injuries sustained, the applicant had been subjected to ill-treatment which might fall under Article 3 of the Convention, for which the State bore no responsibility under its substantive limb. Its responsibility ended with the criminal proceedings in the course of which R.D. had been convicted and punished. The civil courts, at three levels, had dismissed the applicant’s claim finding that the State could not be held responsible given the absence of a causal link between R.D.’s action and his official duties. In this respect, they reiterated that at the critical time, R.D. had left his work during his working hours, without the consent of his superiors. The incident happened after he had carried out his official duty, namely to stand guard. In the bar, he had not performed any official duty, in the course of or in the connection with his work. He had acted rather as a private person, as established by the domestic courts.

    35. 2.  The Court’s assessment

    (a)  Applicability of Article 2 of the Convention

  35. Under the Court’s case-law, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention. It is correct that in the proceedings brought under the Convention the criminal responsibility of those concerned in the use of the impugned force is not in issue. Nonetheless, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case State agents’ actions in inflicting injury but not death are such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose pursued by that Article. In almost all cases where a person is assaulted or ill-treated by the police or soldiers their complaints will rather fall to be examined under Article 3 of the Convention (see Makaratzis, cited above, § 51, and İlhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000 VII).

  36. In the present case, from the facts established by the domestic courts, it is clear that R.D. shot the applicant in the right side of the chest. The Court accepts the Government’s submission that no intention of killing the applicant was established on R.D.’s part. It observes, however, that the fact that the latter was not killed was fortuitous. In this respect, the Court attaches weight to the fact that R.D. fired the shotgun at the applicant at close range (1-1.5 m, see paragraphs 7 and 10 above). The applicant sustained serious injuries, which were identified as being of a life threatening nature. This has left him with a long-term loss of function. He was urgently admitted to hospital and was operated on twice. The seriousness of his injuries is not in dispute between the parties.

  37. In the light of the above circumstances, the Court concludes that, irrespective of whether or not R.D. actually intended to kill him, the applicant was the victim of conduct which, by its very nature, put his life at risk, even though, in the event, he survived. Article 2 is thus applicable in the instant case.

    38. (b)  The State’s direct responsibility under Article 2 of the Convention

    (i)  General principles

  38. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI).

  39. In keeping with the importance of Article 2 in a democratic society, the Court must subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force, but also all the surrounding circumstances (see McCann and Others v. the United Kingdom, 27 September 1995, § 150, Series A no. 324).

  40. Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (ibid., § 57).

  41. This positive obligation entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective prevention. This framework must include regulations geared to the special features of certain activities, particularly with regard to the level of the potential risk to human lives. The State must display the utmost diligence and define the limited circumstances in which law enforcement officials may use firearms (see Abdullah Yilmaz v. Turkey, no. 21899/02, §§ 56 and 57, 17 June 2008 and Makaratzis, cited above, § 59).

  42. For the Court, and having regard to its case-law, the State’s duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Ciechońska v. Poland, no. 19776/04, § 67, 14 June 2011).

  43. However, the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001-III, and A. and Others v. Turkey, no. 30015/96, §§ 44-45, 27 July 2004). In particular, the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Ciechońska, cited above, § 65 and Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005 IV).

    44. (ii)  Applicability of the foregoing principles in the present case

  44. The Court observes the specific circumstances under which R.D. shot the applicant. In this connection it notes that R.D., at the relevant time, was a police reservist and thus a State agent. That was confirmed by the civil courts (see paragraph 10 above) and is in compliance with section 46 of the then valid Internal Affairs Act (see paragraph 25 above). At the critical time, namely the night of 5-6 January 2002, R.D. was on duty at a police station, where he was assigned to stand guard at midnight (on 5 January) and 6 a.m. (on 6 January 2002), each turn of duty lasting one hour. At 1 a.m. on 6 January 2002, after his guard duty ended, and without informing his superiors, he left the station and went to the bar. He was in uniform and had his official gun. At 3.50 a.m. that day he fired the gun and hit the applicant in the chest. R.D. was convicted, initially in absentia, of having negligently committed a serious crime against security and sentenced to two years’ imprisonment. After the proceedings were reopened, he was found guilty again and sentenced to a suspended prison term (see paragraphs 7 and 8 above). The applicant was advised to pursue his compensation claim by means of a separate civil action.

  45. In the civil proceedings, the applicant requested the domestic courts to establish State responsibility for the damage suffered. The courts dismissed the claim because they found the State did not have the necessary standing to be sued. It was so since R.D. had not been acting in an official capacity but rather as a private person, and the damage had not been caused in the course of or in connection with the performance of his duties.

  46. The Court recalls its case law under which a State is directly responsible for acts of violence committed by police officers in the performance of their duties (see Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). The present case should be distinguished from the Krastanov case, since it concerns a harmful action by a State agent, taken outside his duties.

  47. In order to establish whether a State can be held responsible for unlawful actions of its agents taken outside their official duties, the Court needs to assess the totality of the circumstances and consider the nature and circumstances of the conduct in question.

  48. In this connection the Court observes that the incident occurred during the working hours of R.D. It is not in doubt that R.D., at the relevant time, was supposed to be on duty in the police station. He left his place of duty without authorisation of his superiors and while intoxicated, engaged in dangerous behaviour, putting the applicant’s life at risk. The parties did not contest this flagrant noncompliance with the rules of work, which led to the incident in question. R.D. was uniformed when he shot the applicant. In such circumstances, it is not unreasonable that he was perceived by the public as a law-enforcement agent. Furthermore, he shot the applicant using his official gun, which was made available to him by the authorities.

  49. The Court accepts that the authorities could not have objectively foreseen the applicant’s behaviour of insubordination and his subsequent vendetta in the bar. However, it underlines that the State has to put in place and rigorously apply a system of adequate and effective safeguards designed to prevent its agents, in particular temporary mobilised reservists, to abuse official weapons made available to them in the context of their official duties. The Government did not inform of any regulations in force in this respect. In this connection the Court refers to section 26 of the Internal Affairs Act, which required that State agents, as was R.D., performed their duties “at all times, whether on or off duty”. Apparently, the application of this provision had obvious benefits for the society, but it also involved some potential risk. The permanent engagement of State agents as police officers required that they always have official weapons in order to exercise their duties.

  50. Furthermore, the Court reiterates that the States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems meet the requisite criteria (see, mutatis mutandis, Abdullah Yilmaz, cited above, §§ 56-57). In particular, when equipping police forces with firearms, not only must the necessary technical training be given, but the selection of agents allowed to carry such firearms must also be subject to particular scrutiny.

  51. In the present case, the Government did not inform whether any assessment has been made by the national authorities if R.D. had been fit to be recruited and equipped with a weapon, which had led to the incident in question. In such circumstances, the Court considers that the harmful action that R.D. took in the bar must be imputable to the respondent State.

  52. The applicant’s action against the State provided an appropriate forum with the power to attribute responsibility for R.D.’s actions which caused the breach of his rights under Article 2 of the Convention. The fact that he did not seek compensation from R.D. is not decisive, since the object of his claim, as well as of his application before the Court, was to establish the State’s responsibility as such.

  53. In view of the foregoing, the Court dismisses the Government’s objection of non-exhaustion and finds that there has been a violation of Article 2 of the Convention under its substantive limb.

  54. In the absence of an explicit complaint by the applicant, the Court need not assess whether the State complied with the procedural obligation under Article 2 of the Convention.

    55. II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

  55. The applicant complained that the civil proceedings had been unreasonably lengthy, in breach of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

    56. “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

  56. The Court notes that the proceedings in question started on 11 November 2002 and ended on 31 May 2006, when the Supreme Court dismissed the applicant’s claim. They therefore lasted three years, six months and twenty days at three levels of jurisdiction.

  57. The Court does not consider that the case was complex.

  58. Nor, having regard to the material before it, does the Court consider that the applicant contributed to the length of the proceedings.

  59. As regards the conduct of the authorities, the Court considers that apart from the two-year delay in the proceedings before the Supreme Court, which was somewhat long, there were no other delays attributable to them.

  60. Having regard to the criteria laid down in its case-law for assessing the reasonable-time requirement contained in Article 6 § 1 of the Convention (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV; and the Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, § 35), the Court considers on the whole that the proceedings in the present case were conducted within a reasonable time and that the applicant’s complaint concerning their length is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must be rejected in accordance with Article 35 § 4 of the Convention.

    61. III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  61. Article 41 of the Convention provides:

    62. “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

  62. The applicant claimed 3,390 euros (EUR) in respect of pecuniary damage. This concerned medical expenses related to his treatment. In support, he submitted copies of the relevant invoices. He also claimed EUR 455,300 in compensation for non-pecuniary damage caused by pain, fear, reduced capacity and disfigurement suffered as a result of the injuries. Both figures corresponded to the sums that the applicant claimed in the civil proceedings (see paragraph 9 above). In addition, he claimed EUR 10,000 for the alleged violation of Article 2 and EUR 10,000, for having allegedly been denied the right to a fair trial.

  63. The Government contested these claims, arguing that there was no causal link between the damage and the alleged violations. As to the pecuniary damage claimed, they stated that the applicant had failed to seek reimbursement from R.D. as the perpetrator of the crime and directly responsible for the damage suffered. As to the claim for non-pecuniary damage, they maintained that it was not supported by evidence. The same concerned his claims for the alleged breach of Articles 2 and 6. Lastly, they argued that the standard of living in the former Yugoslav Republic of Macedonia should be taken into account and that the finding of a violation of the Convention would be sufficient just satisfaction.

  64. The Court considers that the pecuniary damage claimed concerned the medical expenses which the applicant incurred as a direct consequence of his being injured by R.D. In view of the supporting documents and the fact that the Government did not dispute their amount, the Court awards in full the sum claimed under this head.

  65. It further accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of violation of Article 2 of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,000 under this head, plus any tax that may be chargeable.

    66. B.  Costs and expenses

  66. The applicant did not seek reimbursement for costs and expenses. Accordingly, the Court does not award any sum in this respect.

    67. C.  Default interest

  67. 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.

    68. FOR THESE REASONS, THE COURT UNANIMOUSLY

  68. Joins to the merits the question of applicability of Article 2 of the Convention and the Government’s objection of non-exhaustion of domestic remedies;


  69. Holds that Article 2 of the Convention is applicable to the present case;


  70. Dismisses the Government’s objection of non-exhaustion of domestic remedies;


  71. Declares admissible the complaint under Article 2 of the Convention and the remainder of the application inadmissible;


  72. Holds that there has been a violation of Article 2 of the Convention;


  73. Holds

    74. (a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which are to be converted into the national currency of the respondent State at the rate applicable on the date of settlement:

    i)  EUR 3,390 (three thousand three hundred and ninety euros), plus any tax that may be chargeable, in respect of pecuniary damage, and

    ii)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;


  74. Dismisses the remainder of the applicant’s claim for just satisfaction.

    75. Done in English, and notified in writing on 19 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Claudia Westerdiek Peer Lorenzen
    Registrar President

    1 Approximately the equivalent of EUR 455,300 and EUR 3,390.

    2 Adopted on 19 September 2001 at the 765th meeting of the Ministers’ Deputies. 

     


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URL: http://www.bailii.org/eu/cases/ECHR/2012/726.html