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FIFTH
SECTION
CASE OF
DIKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 13270/02)
JUDGMENT
STRASBOURG
31
May 2007
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 Dika v. the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 3 November 2005 and 9 May 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 13270/02) 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
Islam Dika (“the applicant”), on 29 September 2001.
- The
applicant was represented by Mr N. Merdzanoski, a lawyer practising
in Struga. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged that his case had not been heard within a
reasonable time as required under Article 6 of the Convention.
- By
a decision of 3 November 2005, the Court declared the application
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1966 and lives in the village
Livadi, Struga, the former Yugoslav Republic of Macedonia.
- On
5 March 1993 a Fokker airplane, which was operated by the Macedonian
company Palair (“the first defendant”), crashed at Skopje
airport during taking off. The applicant was one of the few
passengers who survived the accident. He sustained serious physical
injuries.
-
Settlement negotiations between the applicant, the Palair, Fokker
Airkraft B.V. (“the second defendant”), Airkraft
Financing & Trading B.V. from the Netherlands and Lloyds of
London were unsuccessful.
- On
17 February 1995 the applicant brought a civil action before the
Skopje Court of First Instance (Основен
суд Скопје
I Скопје)
requesting the court to award him compensation for the
pecuniary and non-pecuniary loss sustained as a result of the
accident: in particular, he asked the court to order the defendants
to compensate him for the loss of his personal belongings, medical
expenses, his loss of income and loss for his mental suffering, as
well as to pay him a life-time pension given his permanent
incapacity.
-
The first hearing was held on 27 October 1995 and was attended by all
parties. It was adjourned on the request of the applicant to allow
him to submit additional evidence.
-
The hearing fixed for 8 December 1995 was adjourned due to the
applicant's illness.
-
At a hearing held on 6 February 1996, the court provided the
defendants with evidence previously submitted by the applicant.
- The
next hearing of 26 March 1996 was rescheduled on the defendants'
request for further time to examine the applicant's submissions.
Meanwhile, the applicant changed lawyers. At the hearing of 14 May
1996, the court ordered one of the defendants to provide further
evidence.
-
At a hearing on 27 June 1996, the court ordered a forensic expert
examination to establish the applicant's loss of income given that he
had a work permit in Switzerland.
-
Hearings scheduled for 21 November 1996 and 11 February 1997 were
adjourned as the parties had not been properly summoned.
-
At a hearing of 25 March 1997 the applicant had requested an
adjournment to allow him to further particularise his claim.
-
At a hearing held on 9 May 1997, one of the defendants requested a
postponement to examine the applicant's more recent submissions.
-
On 26 June 1997 the court adjourned the hearing: there was no
evidence that the forensic expert and the first defendant had been
properly summoned.
-
On 24 October 1997 the court heard the expert. The court further
ordered the applicant to further particularise his financial claim
and to provide information about a sum of money he had already
received from the first defendant.
-
On 17 November 1997 the applicant requested the Minister of Justice
to intervene before the competent court for a speedy resolution of
his case.
-
On 24 January 1998 the applicant complained before the President of
the Skopje Court of First Instance that no decision had been taken
although all relevant evidence and expert opinions had been obtained.
On 14 May 1998 he repeated his grievances before the
President of the Skopje Appeal Court.
-
Adjournments of hearings fixed for 18 December 1997 and 17 February
1998 were afforded in the absence of evidence that the first
defendant had been properly summoned.
- A
hearing fixed for 21 April 1998 was adjourned on the parties'
request, as they were pursuing an out-of-court settlement.
- A
hearing held on 22 May 1998 was postponed as the first defendant had
withdrawn from the case.
-
Hearings fixed for 11 September 1998, 19 November 1998 and
16 February 1999 were adjourned again due to a lack of evidence
that the first defendant had been properly summoned. The court record
stated that the slip of the mail receipt had borne the signature, but
not the stamp, of the first defendant.
-
On 19 February 1999 the applicant requested to be exempted from court
fees.
-
The court adjourned a hearing fixed for 13 April 1999 as the
applicant had failed to provide evidence supporting his request for
exemption. Hearings fixed for 8 June, 5 October and 7 December 1999
were adjourned due to improper delivery of the court summons on the
first defendant.
-
On 8 November 1999 the applicant requested the Skopje Court of First
Instance to declare it incompetent ratione loci and to confer
the further handling of his case on the Struga Court of First
Instance. He maintained that, because of his poor financial
situation, he could not sustain the travelling expenses from his
place of residence to Skopje to attend the court hearings.
-
On 11 February 2000 the Skopje Court of First Instance dismissed the
applicant's request as out of time. By a decision of 21 September
2000 the Skopje Court of Appeal dismissed the applicant's appeal.
-
On 25 October 2000 the Supreme Court dismissed the applicant's
request to transfer his case to another court competent ratione
materiae: his arguments, that the proceedings had lasted almost
five years and that he had scarce means of subsistence, could not be
regarded as sufficient to justify that measure.
-
On 20 October 2000 the applicant complained before the State Judicial
Council about the delays in the proceedings.
- A
hearing fixed for 22 December 2000 was adjourned as none of the
parties appeared at court.
-
On 17 April 2001 the applicant requested a special delivery of the
court summons on the first defendant.
-
The court adjourned a hearing fixed for 3 July 2001, in the parties'
presence, to allow it examine the first defendant's legal status and
the validity of the letter of authority of its lawyer. The court also
undertook to secure information as to whether the first defendant had
been insolvent.
-
On 30 October 2001 the court was informed that preliminary bankruptcy
proceedings had been instituted against the first defendant. As that
information did not reach the court in time, it adjourned a hearing
fixed for 8 November 2001. The court decided to summon the first
applicant's receiver for the next hearing.
-
The hearings fixed for 27 December 2001, 14 March and 16 May 2002
were adjourned due to improper delivery of the court summons on the
first defendant or the receiver. The applicant proposed that a
further summons for the first defendant be announced on the court's
notice board.
-
On 4 July 2002 the court was notified that the preliminary bankruptcy
proceedings against the first defendant had been suspended. The court
adjourned a hearing fixed for 10 September 2002 to confirm the
validity of the letter of authority of the first defendant's lawyer.
-
The court then adjourned a hearing of 8 November 2002 as the first
defendant had not been properly summoned. In response to the
applicant's request, it fixed the next hearing for 11 March 2003.
-
On 15 May 2003 the Skopje Court of First Instance partly upheld the
applicant's claim and ordered the first defendant to pay just
compensation for his non-pecuniary loss and for his pecuniary loss
from March until November 1993. It dismissed the remainder of his
claim against the first defendant. The court further dismissed his
claim against the second defendant given the latter's lack of legal
capacity (немање
на пасивна
легитимација).
-
On 10 September 2004 the Skopje Court of Appeal dismissed the
applicant's appeal and upheld the trial court's decision.
-
On 19 April 2006 the Supreme Court dismissed the applicant's appeal
on points of law (ревизија).
- The
applicant had six different representatives during these proceedings.
II. RELEVANT DOMESTIC LAW
-
Section 10 of the Civil Proceedings Act (Закон
за парничната
постапка)
(“the Act”) provided, at the relevant time, that it was
incumbent upon the court to undertake to conduct the proceedings
without undue delay and economically, and to inhibit any attempt of
abuse of the rights afforded to the parties concerned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant complained that the length of his civil proceedings was
incompatible with the “reasonable time” guarantee of
Article 6 § 1 of the Convention, which in so far as relevant,
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. 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
maintained that there had been exceptionally complex circumstances
attending the examination of the case by the trial court, such as:
the examination of the legal status of the first defendant; one of
the parties was a foreign company; the applicant had submitted
voluminous evidence; he had not particularised or amended his claims
in good time; and a financial expert examination was requested. The
civil proceedings were based on the principle of the autonomy of
parties and that the courts were bound by the applicant's conduct.
-
Concerning the conduct of the domestic authorities, the Government
maintained that the trial court had proceeded with the case with due
diligence, as the scheduled hearings had been held without any
interruption and delays, with the exception of the summer recess.
-
As regards the applicant's conduct, the Government stated that he had
contributed to the length of the proceedings, as ten of the
thirty-four hearings fixed were adjourned due to his fault. In
addition, they contended that he had failed to particularise his
financial claims in good time. Moreover, they averred that the
applicant's request for transfer of the case to another court had
significantly added to the length of the proceedings as had his
changed counsels six times during the proceedings.
-
The applicant submitted that the case was not of a complex nature and
that the trial court had unreasonably delayed the proceedings. He
maintained that the case had been of utmost importance for him: he
was fully incapacitated with a resulting negative impact on his
family's standard of living. No periods of delay had been imputable
to him: he had complied with court orders and he had filed his
evidence in time, as that was in his interest. It was his right to
choose his own representatives and their frequent replacement had not
affected the length of the proceedings. He had failed to attend only
one hearing due to his illness.
-
As to the conduct of the domestic authorities, he stated that the
trial court had expeditiously proceeded with the case until 26 June
1996, but that the subsequent proceedings had been unjustifiably
delayed. The applicant also contested the accuracy of some of the
court records. He further maintained that the courts had enabled the
first defendant to become insolvent by delaying the impugned
proceedings.
b. The Court's assessment
-
The Court notes that the proceedings started on 17 February 1995 when
the applicant filed his compensation claim before the Skopje Court of
First Instance.
-
However, the period which falls within the Court's jurisdiction began
on 10 April 1997, when the recognition by the former Yugoslav
Republic of Macedonia of the right of individual petition took effect
(see Kostovska v. the former Yugoslav Republic of Macedonia,
no. 44353/02, § 34, 15 June 2006; Dumanovski
v. the former Yugoslav Republic of Macedonia, no. 13898/02, § 36,
8 December 2005). 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 Milošević v.
the former Yugoslav Republic of Macedonia, no. 15056/02,
§ 21, 20 April 2006; Styranowski v. Poland,
no. 28616/95, § 46, ECHR 1998-VIII; Foti and Others
v. Italy, judgment of 10 December 1982, Series A no.
56, p. 18, § 53). In this connection, the Court notes that at
the time of the entry into force of the Convention in respect of the
former Yugoslav Republic of Macedonia the proceedings had lasted two
years one month and twenty-four days for one court level.
-
Even assuming that it can be considered that the proceedings ended on
19 April 2006, there being no evidence as to the date of service of
the Supreme Court's decision to the applicant, the relevant period
which falls within the Court's competence was nine years and nine
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 Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII; the Humen
v. Poland [GC], no 26614/95, § 60,
unreported, and the Comingersoll S.A. v. Portugal [GC],
no. 35382/97, ECHR 2000-IV; the Philis v. Greece (no.
2), judgment of 27 June 1997, Reports of Judgments and
Decisions 1997 IV, § 35).
-
The Court finds that the case was of some complexity, but that that
cannot of itself explain the length of the proceedings.
-
Concerning the applicant's conduct, the Court finds that the only
period of delay imputable to him is a one-year period in relation to
his request for transfer of the case to another court (see paragraphs
28-30). It further observes that he filed several motions to the
trial court and to other relevant authorities to expedite the
proceedings (see paragraphs 20, 21 and 31).
- On
the other hand, the Court considers that there are many and
substantial delays attributable to the authorities. Prior to the
entry into force of the Convention in respect of the former Yugoslav
Republic of Macedonia, the proceedings had already been pending
before the Court of First Instance for just over two years. It took
another six years for the Skopje Court of First Instance to decide
the applicant's claim. Moreover, the main obstacle to the case
proceeding was the inability, on six occasions, of the trial court to
secure the presence of the first defendant alone (see paragraphs 18,
22, 25, 27, 36 and 38).
-
In this respect, it recalls that 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 Rizova v. the former Yugoslav Republic of Macedonia,
no. 41228/02, § 48, 6 July 2006).
- In
addition, the Court reiterates that although, as argued by the
Government, the progress of civil proceedings is, in domestic law,
decided by the parties, that principle does not dispense the courts
from ensuring compliance with the “reasonable time”
requirement of Article 6. In any event, section 10 of the Act (see
paragraph 43 above) provided that “it was incumbent upon the
court to undertake to conduct the proceedings without undue delay”
(see, mutatis mutandis, Scopelliti v. Italy, judgment
of 23 November 1993, Series A no. 278, § 25).
59. Moreover, it reiterates that special diligence is necessary in
disputes concerning determination of compensation in personal
injuries cases (see Poje v. Croatia, no. 29159/03, § 26,
9 March 2006; Silva Pontes v. Portugal, judgment of
23 March 1994, Series A no. 286-A, p. 15, § 39).
-
Having regard to the circumstances of the instant case and to what
was at stake for the applicant, the Court considers that the length
of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- 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.”
- Without
specifying the total amount of his claim in respect of the pecuniary
damage, the applicant requested compensation for loss of income for
the period between 1994 and 2005, together with interest. He further
claimed a life-time pension due to the alleged full and permanent
incapacity. He also claimed Swiss Francs 950,000 (SFR) in respect of
non-pecuniary damage for the fear and emotional stress suffered as a
consequence of the injuries sustained.
-
The Government contested the applicant's claims. They asked the Court
to dismiss these claims as essentially a repetition of his claims
before the domestic courts. As an alternative, they requested the
Court to assess the amount of just satisfaction to be awarded on the
basis of its case-law and the economic situation of the State.
-
The Court observes that the applicant claimed compensation for the
pecuniary and non-pecuniary loss he had sustained as a result of the
accident and further, that he did not claim any damage as a
consequence of the length of the proceedings. Since there is no
causal link between the violation found and
the damage alleged, the Court therefore rejects these claims.
B. Costs and expenses
- The
applicant also claimed twenty percent of the award for reimbursement
of the lawyer's fees in respect of the proceedings before the
domestic courts and before this Court. He referred to a “service
agreement” of 8 December 2000 under which the applicant had
agreed to pay his representative twenty percent of the award granted
before the domestic courts or before this Court, as he had not been
asked to pay any fees during the proceedings. Otherwise, he left the
matter to the Court's discretion.
- The
Government contested the applicant's claim.
- According
to the Court's case-law, an award can be made in respect of costs and
expenses only in so far as they have been actually and necessarily
incurred by the applicant and are reasonable as to quantum (see
Kostovska v. the former Yugoslav Republic of Macedonia, cited
above, § 62; Arvelakis v. Greece, no. 41354/98,
§ 34, 12 April 2001; Nikolova v. Bulgaria
[GC], no. 31195/96, § 79, ECHR 1999-II). It is also
recalled that “conditional fee agreements”, as in the
present case, may show, if they are legally enforceable, that the
sums claimed are actually payable by the applicant and the Court
must, as always, assess whether they were reasonably incurred (see
Young v. the United Kingdom, no. 60682/00, § 53,
16 January 2007). The Court notes that the applicant did not provide
any supporting documents or particulars to substantiate the costs and
expenses claimed in respect of the domestic proceedings: it therefore
rejects the claim under this head. On the other hand, the Court
considers reasonable, regard being had to the above criteria and in
particular the scope of work done by the applicant's representative,
to award the sum of EUR 600 for the proceedings before the Court.
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
- 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) in respect of costs and expenses, plus any tax that
may be chargeable;
(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 applicant's claim for just
satisfaction.
Done in English, and notified in writing on 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President