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FIFTH
SECTION
CASE OF STOJANOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 34215/02)
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 Stojanov 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,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R.
Jaeger judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 9 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34215/02) 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 Vanče Stojanov (“the
applicant”), on 24 August 2002.
- The
applicant was represented by Mr I. Stojanov from Skopje. The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
4 November 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Skopje.
- On
22 January 1991 the applicant brought before the then Labour Court of
First Instance (Основен
Суд на Здружен
Труд Скопје)
a civil action against the employer's decisions of 28
November and 10 December 1990 about his reassignment.
- On
25 March 1991 the Labour Court of First Instance upheld the
applicant's claim and annulled the impugned decisions as unlawful. It
further ordered the employer to reinstate him to a post equal to his
qualifications.
- On
30 January 1992 the then Skopje District Court (Окружен
Суд Скопје) set
aside the decision and remitted the case for re-examination. It
instructed the lower court, inter alia, to admit in evidence
the internal regulations of the employer.
- At
the hearing held on 21 May 1992, the applicant lodged with the court
a separate claim for compensation for the difference in salary (“the
compensation claim”) caused by his reassignment. On the same
day, the Skopje Municipal Court (Општински
Суд Скопје)
dismissed the applicant's claims.
- On
6 November 1992 the Skopje District Court upheld the applicant's
appeal and quashed the earlier decision. It held that the lower court
had not complied with its earlier instructions and had requested it,
inter alia, to order the applicant to further particularise
his compensation claim.
-
On 19 March 1993 the Skopje Municipal Court adopted a partial
decision (делумна
пресуда) by
which it annulled the employer's reassignment decisions. It further
held that the proceedings concerning the applicant's compensation
claim would resume after the decision on the reassignment became
final.
-
On 21 October 1993 the District Court of Skopje dismissed the
employer's appeal and upheld the lower court's partial decision.
-
As to the applicant's compensation claim, the court adjourned the
hearing of 17 February 1994 as the employer's report about the amount
of the difference in salary had not been communicated to the
applicant in time. At the hearing of 1 March 1994 the applicant
requested the court to order a financial expertise. The expert report
was provided on 26 April 1994.
-
On 15 June 1994 the proceedings were stayed for three months due to
the applicant's absence.
-
On 7 October 1994 the Skopje Municipal Court upheld the applicant's
compensation claim and ordered the employer to pay him the sum which
had been recommended in the expert report of 26 April 1994. The court
referred, inter alia, to the then Labour Relationships Act
concerning compensation for damage sustained at work.
-
On 16 March 1995 the District Court dismissed the employer's appeal
and upheld the lower court's decision.
-
On 30 October 1996 the Supreme Court upheld the employer's appeal on
points of law (ревизија),
quashed the lower courts' decisions and ordered a retrial. It found
that they had incorrectly applied national law concerning the amount
of the award.
-
At the hearing of 3 September 1997 the trial court ordered the
applicant to further particularise his compensation claim in
compliance with the Supreme Court's instructions. The next hearing of
21 November 1997 was allegedly postponed due to the applicant's
failure to comply with the order. No document was provided in
support.
-
The hearing fixed for 29 December 1997 was adjourned as the court had
ordered another financial expertise. At the hearing of 11 May 1998
the court requested a further expert study.
-
The next hearing of 1 December 1998 was adjourned due to the
applicant's illness.
-
The hearings of 23 March and 7 June 1999 were also adjourned.
-
On 13 September 1999 the Skopje Court of First Instance (Основен
Суд Скопје)
upheld the applicant's compensation claim and awarded him the same
amount as determined on 7 October 1994.
-
By letters of 31 January, 8, 15 and 22 February 2000 the applicant
requested the Court of Appeal to give priority to the case.
-
On 10 February 2000 the Skopje Court of Appeal (Апелационен
Суд Скопје)
upheld the employer's appeal and remitted the case for a fresh
consideration. It found that the lower court had ignored the
instructions of the Supreme Court concerning the calculation of the
award.
-
On 12 June 2000 the applicant applied to the Court of First Instance
for expedition of the proceedings.
-
On 1 December 2000 the court suspended the proceedings due to the
applicant's absence. The applicant requested reinstatement of the
proceedings (враќање
во поранешна
состојба) as
he had been called upon by the Army. The proceedings resumed on 15
May 2001 as the court had found the applicant's excuse justified. The
hearing of 21 February 2001 was postponed because of a strike of the
court administration.
-
On 19 September 2001 the Skopje Court of First Instance upheld the
applicant's compensation claim and awarded compensation in a smaller
amount.
-
On 13 March 2002 the Court of Appeal partially upheld the employer's
appeal and overturned the lower court's decision concerning the
calculation of interest. It upheld the remainder of the decision.
RELEVANT DOMESTIC LAW
-
Section 10 of the then Civil Proceedings Act (Закон
за парничната
постапка)
(“the Act”) provided 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.
-
Section 408 of the Act provided, inter alia, that the court
should take into consideration the necessity of urgent settlement of
employment disputes.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads, in so far
as relevant, 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
1. Compatibility ratione materiae
-
The Government maintained that the dispute did not fall within the
scope of Article 6 § 1 of the Convention nor were the
proceedings directly decisive for the applicant's “civil rights
and obligations”.
-
The applicant contested the Government's objection.
33. As to the existence of a “contestation”
(dispute) over a right, the Court would refer to the principles
enunciated in its case-law (see Benthem v. the Netherlands,
judgment of 23 October 1985, Series A no. 97, § 32).
- In
the present case, the Court observes that the impugned proceedings
concerned the applicant's compensation claim related to an alleged
unlawful reassignment. The dispute therefore concerned an
employment-related matter and was arguable and genuine. In addition,
the proceedings complained of were capable of leading - and did in
the present case - to a partial grant of the applicant's compensation
claim; they were therefore directly decisive for the right at issue.
-
Furthermore, the Court finds that the applicant's claim was of a
pecuniary and private nature arising from his employment. It is thus,
not excluded, as the Government argued, from the category of civil
rights to which Article 6 § 1 of the Convention applies (see,
mutatis mutandis, Trykhlib v. Ukraine, no. 58312/00, 20
September 2005).
-
Accordingly, the Government's objection must be dismissed.
2. Compatibility ratione personae
-
The Government further considered that the applicant could not claim
to be a victim of the violation complained of as he had not sustained
any financial damage by the reassignment. They further maintained
that he had contributed to the length of the proceedings.
-
The applicant did not express an opinion on the matter.
-
According to the Court's established case-law, the word “victim”
in the context of Article 34 of the Convention denotes the person
directly affected by the act or omission in issue (see Amuur v.
France, judgment of 25 June 1996, Reports of Judgments and
Decisions 1996 III, § 36). In addition, a decision
or measure favourable to the applicant is not in principle sufficient
to deprive him of his status as a “victim” unless the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the breach of the
Convention (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 180, ECHR 2006 and the references
cited therein).
-
In the present case, while the applicant was compensated for his
reassignment, the domestic courts have neither acknowledged, nor
provide redress, for the alleged breach of the applicant's right to a
trial within a reasonable time under Article 6 of the Convention.
- The
applicant, therefore can claim to be a victim of a violation of
Article 6 § 1 of the Convention.
- Accordingly,
the Government's objection must be dismissed.
3. Conclusion
43. The Court considers that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. 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 further stated that the case had been of a complex nature due to
the voluminous expert opinions and the volume of documents which the
domestic courts had considered to establish the facts. As the
proceedings concerned an employment-related matter, the domestic
courts had been required to find a balance between the complexity of
the case and its urgent nature.
-
As regards the applicant's conduct, the Government submitted that he
had considerably contributed to the length of the impugned
proceedings: his failure to attend the hearings of 15 June 1994 and 1
December 1998 caused suspension of the proceedings; that he had
frequently amended the amount of his claim; and that he had not
requested the court to speed up the proceedings. They further
maintained that the parties to the proceedings had availed themselves
of the remedies available under the domestic law.
-
Concerning the conduct of the domestic courts, the Government argued
that they had decided the applicant's case with due diligence and
noted that thirteen decisions had been given throughout. They further
maintained that the scheduled hearings had been held without any
interruptions and delays. They concluded that the impugned
proceedings had been composed of number of separate sets and that
none of them had lasted unreasonably long.
-
The applicant contested the Government's argument about the
complexity of the case arguing that the courts had decided a simple
employment-related matter of minor value.
-
He further submitted that he had endeavoured to accelerate the
proceedings and that his absence from two hearings of forty hearings
listed, had not added much to the length of the proceedings. In
addition, he stated that the frequent remittal orders had indicated
that the lower courts had adopted poor decisions which had
contributed to the length of the proceedings. He concluded that the
number of remittal orders and the court's failure to fix the hearings
in regular intervals had been main reasons for the protracted length
of the proceedings, despite their urgent nature.
2. The Court's assessment
- The
Court, at the outset, notes that the proceedings commenced
on 22 January 1991 when the applicant brought the civil
action in relation to the reassignment decision. However, it
considers that the proceedings complained of by the applicant did not
start on that date, but on 21 May 1992 when he introduced
his compensation claim. Moreover, as argued 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 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 four years ten months and twenty
days for three court levels. During this time, the case was three
times remitted back for a fresh consideration. The Supreme Court's
decision of 30 October 1996 was the last decision given during
this period.
-
For the reasons detailed in the Arsov case (see Arsov v.
the former Yugoslav Republic of Macedonia, no. 44208/02,
§ 42, 19 October 2006), the Court finds that the
proceedings complained of should be considered as one single
procedure. They therefore lasted nine years nine months and
twenty-six days of which four years eleven months and three days fall
to be examined by the Court for two 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, and the references
cited therein).
-
The Court considers that the case was not of a particularly complex
nature. Some complexity arose from the need to request experts'
reports, but this cannot, as of itself, explain the length of the
proceedings.
-
As to the applicant's conduct, while he was responsible for the
adjournment of the hearings of 1 December 1998 and 1 December 2000,
this was because of his health and a call by the Army. The latter
adjournment resulted in the proceedings being suspended for over six
months; however, a hearing was held during the period under the
suspension (see paragraph 25 above).
-
In addition, the Court is not convinced by the Government's argument
that the above described (see paragraph 46 above) amendments to the
applicant's claim led to substantial delay nor have they submitted
any evidence that there had been additional amendments. Furthermore,
it is the Court's constant jurisprudence that an applicant cannot be
blamed for taking full advantage of the resources afforded by
national law in the defence of his interests (see Kesyan v.
Russia, no. 36496/02, § 55, 19 October 2006).
-
Furthermore, and contrary to the Government's submission, the
applicant's motions to expedite the proceedings constitute a fact in
his favour even if those requests are not considered as an effective
remedy (see Atanasovic and Others v. the former Yugoslav
Republic of Macedonia, no. 13886/02, § 31, 22
December 2005). Moreover, he cannot be held responsible for the
procedural conduct of the employer and the time in respect of the
remedies which, within the period under consideration, were used only
by the latter.
-
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; Muti v. Italy, judgment of 23 March 1994,
Series A no. 281 C, § 15).
-
The Court further reiterates that only delays attributable to the
State may justify a finding of failure to comply with the “reasonable
time” requirement (see Proszak v. Poland, judgment of 16
December 1997, Reports of Judgments and Decisions 1997 VIII,
§ 40; Ciricosta and Viola v. Italy, judgment of 4
December 1995, Series A no. 337 A, p. 10, § 28).
-
From the material before it, the Court finds number of delays
imputable to the State. Following the Supreme Court's decision of
30 October 1996, the proceedings resumed before the trial court
nearly eleven months later of which five months fall within the
period under consideration. It further observes a total delay of over
a year resulting from the trial court's requests for two expert
reports (see paragraph 18). In this respect, the Court notes that the
principal responsibility for a delay caused by the expert
examinations falls ultimately on the State (see Capuano v. Italy,
judgment of 25 June 1987, Series A no. 119, § 32).
In addition, the expert was working in the context of judicial
proceedings, supervised by a judge, who remained responsible for the
preparation and the speedy conduct of the trial (see Scopelliti v.
Italy, judgment of 23 November 1993, Series A no. 278, § 23).
A further four months lapsed between the hearings scheduled in
December 1998 and March 1999 (see paragraphs 20 and 21). In addition
to that, it observes that it took nearly ten months for the trial
court to fix a hearing after the case had been referred back for
re-examination by the Court of Appeal (see paragraphs 23 and 25).
-
Moreover, the Court notes that the domestic law (see section 408 of
the Civil Proceedings Act above) and the Court's jurisprudence (see,
mutatis mutandis, Ruotolo v. Italy, judgment of 27
February 1992, Series A no. 230-D, § 17; Obermeier v.
Austria, judgment of 28 June 1990, Series A no. 179, §
72) required employment-related disputes to be conducted with a
special diligence.
- The
Court accordingly concludes that, notwithstanding the periods of
delay imputable to the applicant, the length of the present
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. 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
- Referring
to the domestic proceedings, the applicant left the eventual award of
pecuniary damages to the Court's discretion. He did not provide any
particulars or substantiation of his claim. He further claimed 25,000
euros (EUR) in respect of non-pecuniary damage for the anguish
suffered as a consequence of the violation alleged.
- The
Government contested these claims as unsubstantiated. They further
referred to their arguments concerning the serial nature of the
impugned proceedings and the applicant's contribution to their
length. They invited the Court to consider that the eventual finding
of a violation would constitute in itself sufficient compensation for
any damage in the present case.
- Even
if it could be assumed that the applicant claimed pecuniary damage,
the Court rejects it as he failed to provide any detail or
substantiation. On the other hand, the Court considers that the
applicant must have sustained some non-pecuniary damage. Ruling on an
equitable basis, it awards him EUR 1,000 under that head.
B. Costs and expenses
- The
applicant also claimed about EUR 70 for costs and expenses incurred
before the Court in preparing the application and mailing documents.
However, he left the matter to the Court's discretion.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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, cited above, § 62; Arvelakis v. Greece,
no. 41354/98, § 34, 12 April 2001; Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR
1999-II). In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant, who was represented by his son
upon the President's approval, the sum claimed in full.
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 application admissible;
- 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 1,070 (one
thousand and seventy euros) in respect of non-pecuniary damage and
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;
4. Dismisses the remainder of 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
