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FIFTH
SECTION
CASE OF SALI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 14349/03)
JUDGMENT
STRASBOURG
5 July
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 Sali 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 K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14349/03) 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, Mr Skender Sali (“the applicant”),
on 17 April 2003.
- The
applicant was represented by Mr V. Ilievski, a lawyer practising in
Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
13 March 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings. 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Skopje.
- He
was employed by the State Land Bureau (Геодетска
Управа/ Државен
Зaвод за Геодетски
Работи) (“the
employer”). On 29 September 1994 he sustained grievous
bodily injuries while on duty: trying to jump over a fence, he fell
down and broke his spine and elbow. Until June 1997 he was several
times hospitalised and underwent four spinal operations.
- On
21 October 1996 the applicant instituted civil proceedings for
damages against the employer before the Skopje Court of First
Instance (“the trial court”).
- At
a hearing of 8 January 1997 the court ordered the examination of two
witnesses. As their whereabouts fell within the territorial
competence of the Ohrid Court of First Instance, the trial court
requested the latter to carry out the examination.
- On
4 March 1997 the trial court examined one of the witnesses. The
hearing was postponed as the Ohrid Court of First Instance had failed
to examine the other witness.
- On
22 April 1997 the trial court heard the applicant and adjourned the
hearing because of the failure of the Ohrid Court of First Instance
to examine the other witness. A hearing scheduled for 16 June 1997
was adjourned for the same reason.
-
On 18 June 1997 the Ohrid Court of First Instance provided the trial
court with a record of the witnesses' examination. Between 13 January
and 17 May 1997 the trial court had requested the Ohrid Court of
First Instance to carry out the examination on three occasions.
-
On 30 September 1997 the trial court suspended the proceedings
because of the applicant's absence.
-
On 25 November 1997 the applicant requested the trial court to resume
the proceedings.
-
On 16 February 1998 the trial court ordered the re-examination of one
of the witnesses. It further requested the employer to submit the
Working Posts' Regulation (Акт
за систематизација
на работите
и работните
задачи) (“the
Regulation”).
-
On 26 March 1998 the trial court re-examined one of the witnesses and
adjourned the hearing, as the employer had not submitted the
Regulation. It postponed a hearing fixed for 14 May 1998 as the
Regulation had not been provided yet. The trial court further allowed
the applicant's request for an expert examination in relation to the
non-pecuniary damage and ordered the Psychiatric Hospital “Bardovci”
in Skopje (the “Hospital”) to carry out the examination.
The Hospital provided its expert report on 28 August 1998.
-
On 22 October 1998 the applicant requested an additional expert
examination concerning the anguish suffered which was allegedly
omitted in the previous expert report. The trial court granted his
request and ordered the employer to provide information as to whether
the applicant had been medically insured.
- A
hearing fixed for 24 November 1998 was adjourned as the additional
expert report had not been provided.
-
On 16 February 1999 the trial court partly upheld the applicant's
claim and awarded him 3,834,960 Macedonian denars (MKD) together with
interest.
-
On 4 October 1999 the Deputy Solicitor General appealed before the
Skopje Court of Appeal on the basis that the amount of the award had
been excessive; that the lower court had erroneously established the
facts, in particular that the employer had not issued a special
work-instruction for a particular job at the time of the accident;
and that the substantive law had been incorrectly applied.
-
On 23 December 1999 the Skopje Court of Appeal dismissed the Deputy
Solicitor General's appeal and upheld the trial court's judgment.
-
On 1 March 2000 the Deputy Solicitor General brought before the
Supreme Court an appeal on points of law (ревизија).
He complained that the applicant had also contributed to the accident
by overlooking the possible negative consequences of jumping over the
fence. The Deputy Solicitor General further alleged the incorrect
application of the national law. On 9 March 2000 the appeal on points
of law was communicated to the applicant. The latter did not file
submissions in reply.
-
On 21 April 2000 the applicant applied to the trial court to enforce
its judgment and to transfer to him the amount due from the
employer's account. Judgment award was paid in September 2001.
-
On 24 October 2002 the Supreme Court partly upheld the Deputy
Solicitor General's appeal on points of law and overturned the lower
courts' judgments. It dismissed his arguments that there had been
substantial procedural deficiencies, but it ruled that the lower
courts had incorrectly applied the national law. Referring to the
facts as established by the lower courts, the Supreme Court held that
they had erroneously found that the applicant had not contributed to
the accident. Moreover, it found that there had been no instruction
by the employer for the undertaking of the relevant action. It ruled
therefore, that the applicant shared the responsibility with the
employer for the injuries sustained: it consequently reduced the
award by 50% together with statutory interest (законска
затезна камата).
The interest concerning the pecuniary damage was to be calculated
from 21 October 1996 and 22 October 1998, respectively, and the
interest concerning the non-pecuniary damage – from 18 February
1999, until the final payment.
-
No further actions were taken by either of the parties in respect of
the Supreme Court's judgment.
II. RELEVANT DOMESTIC LAW
-
Section 334 of the then Civil Proceedings Act (Закон
за парничната
постапка) (“the
Act”) provided that, inter alia, parties could appeal
the first-instance judgment within fifteen days from the date of
service of that judgment, if not otherwise regulated by law.
-
Section 368 §§ 1 and 2 of the Act provided that the parties
could file an appeal on points of law against a second instance final
judgment within thirty days from the date of service of a certified
copy of that judgment. The appeal on points of law would be
inadmissible, inter alia, if the value of the dispute did not
exceed MKD 1,000,000.
-
Section 370 of the Act provided that an appeal on points of law would
not suspend the enforcement of the final judgement against which it
had been submitted.
-
According to section 371 § 1 (3) and § 3 of the Act, the
appeal on points of law could be submitted for incorrect application
of the substantive law. It could not be brought for incorrectly or
incompletely established facts.
-
Section 377 of the Act provided that the Supreme Court would decide
at a hearing held in camera.
- Section
381 § 1 of the Act provided that the Supreme Court would
overturn the impugned judgment if the substantive law had been
incorrectly applied.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant complained under Article 6 of the Convention that the
length of the proceedings had been excessive. He further argued that
the Supreme Court had re-established the facts of the case although
it had not been vested with such a jurisdiction; that it had not been
impartial and independent, as it had decided under the Government's
influence. He further maintained that it had not decided in public.
Article 6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations...everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law...”
A. Alleged breach of the “reasonable time”
requirement of Article 6 of the Convention
1. Admissibility
a. The applicant's “victim status”
-
The Government maintained that the applicant had no victim status.
Referring to the Supreme Court's judgment, they maintained that the
interest awarded was sufficient compensation for any excessive length
of proceedings.
-
The applicant responded that there was no causal link between the
interest and his right for his case to be heard within a reasonable
time. Under the domestic civil law rules, there was a right of
statutory interest for damage sustained by late payment. In his case,
the interest was compensation for the injuries sustained and not for
the length of the proceedings.
-
As to the question of whether the applicant may claim to be a victim
of a violation of Article 6 § 1 of the Convention as regards the
length of the impugned proceedings, the Court reiterates that “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” (Dalban v. Romania [GC], no. 28114/95, § 44,
ECHR 1999 VI; Amuur v. France, judgment of 25 June 1996,
Reports of Judgments and Decisions 1996 III, p. 846, §
36).
-
In the instant case, the Court finds that the Supreme Court did not
make any reference to the length of the proceedings. It further
accepts that the statutory interest could be regarded as a
compensation for the late payment and did not constitute any
acknowledgment, whether explicit or implicit, on the part of the
national authorities that the applicant's case had not been heard
within a reasonable time (see, mutatis mutandis, Eckle v.
Germany, judgment of 15 July 1982, Series A no. 51, § 66).
-
In conclusion, the Court holds that the applicant may claim to be a
“victim” for the purposes of Article 34 of the
Convention.
b. Conclusion
- The
Court considers that this complaint 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.
2. Merits
a. The parties' submissions
-
The Government submitted that the applicant had contributed to the
length of the proceedings as he had submitted the evidence in his
favour gradually during the proceedings. In addition, the proceedings
had been suspended for several months because of his absence from the
hearing of 30 September 1997.
-
As to the conduct of the national courts, they argued that the
applicant's medical treatment, which had been carried out pending the
proceedings, had been an aggravating circumstance which had affected
their length. The same concerned the expert examinations carried out
during the proceedings. They further maintained that no periods of
inactivity were imputable to the national courts. Concerning the
proceedings before the Supreme Court, they noted its excessive
workload and its extensive jurisdiction.
-
The applicant disputed the Government's arguments arguing that he had
submitted all available evidence together with his claim, but that it
had taken more than a year for the Ohrid Court of First Instance to
examine one of the witnesses proposed, which had added considerably
to the length of the proceedings. He further maintained that it had
been the trial court's fault for failing to order the expert
examination at an earlier stage. On the other hand, he accepted that
the suspension of the proceedings could be attributed to him, but he
argued that it had not prevented the court from establishing the
facts. In addition, he submitted that it had taken seven months for
the trial court to serve its judgment on the parties. He further
argued that the long delays between the hearings and the delay before
the Supreme Court were not justified by the Government's arguments.
b. The Court's assessment
- The
Court notes that the proceedings started on 21
October 1996 when the applicant had brought the compensation claim
before the Skopje Court of First Instance. However, the period which
falls within the Court's jurisdiction did not begin on that date, but
nearly six months later, 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).
- The
proceedings ended on 24 October 2002 with the Supreme Court's
decision. Accordingly, the relevant period which falls within the
Court's competence was five years, six months and fourteen days for
three levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see
Markoski v. the former Yugoslav Republic of Macedonia, no.
22928/03, § 32, 2 November 2006, and the references
cited therein).
-
The Court does not consider that the national courts were required to
examine issues of a complex nature.
-
As to the applicant's conduct, the Court considers that he was
responsible for the adjournment of the hearing of 30 September 1997
(see paragraph 11 above) resulting in the proceedings being suspended
for four months and sixteen days. It does not find any further delays
attributable to the applicant nor does it consider that the
Government have put forward any convincing evidence to the contrary.
-
As regards the conduct of the domestic authorities, the Court
observes that it took five months and ten days for the Ohrid Court of
First Instance to examine the witness whose whereabouts fell within
its jurisdiction (see paragraphs 7 and 10 above). It further observes
that nearly eight months lapsed between the trial court's judgment
and the introduction of the Deputy Solicitor General's appeal (see
paragraphs 17 and 18 above). In absence of evidence as to the date of
service of the trial court's judgment to the parties and having
regard to the fifteen-day time-limit for introduction of an appeal
(see paragraph 24 above), inferences could be drawn in favour of the
applicant's allegations that it took the trial court about seven
months to serve its judgment on the parties. As to the appeal
proceedings, the Court observes that they lasted less than three
months (see paragraphs 18 and 19 above).
-
The Court further notes that the applicant's case was pending before
the Supreme Court for two years, seven months and twenty-three days
following the Deputy Solicitor General's appeal on points of law (see
paragraphs 20 and 22 above). During this time, the Supreme Court only
reviewed the case on points of law and did not take any evidence or
perform any other procedural activity (see Lickov v. the former
Yugoslav Republic of Macedonia, cited above, § 30;
Jelavić-Metrović v. Croatia, no. 9591/02, § 28,
13 January 2005). In this respect, it cannot accept the Government's
arguments concerning its workload and extensive jurisdiction for the
reasons detailed in the Lickov judgment (see Lickov v. the
former Yugoslav Republic of Macedonia, cited above, § 31).
47. Moreover, it reiterates that special diligence is necessary in
disputes concerning the 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 in the instant case
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.
B. The remaining complaints under Article 6 § 1 of
the Convention
-
The applicant further complained that the Supreme Court had not
decided his case in public; that establishing facts was beyond its
competencies; and that it had not been impartial and independent, as
it had decided under the Government's influence.
- The
Court has held on a number of occasions that, provided that there has
been a public hearing at first instance, the absence of public
hearings at second or third instance may be justified by the special
features of the proceedings at issue. Thus, proceedings for leave to
appeal or proceedings involving only questions of law, as opposed to
questions of fact, may comply with the requirements of Article 6 even
where the appellant was not given an opportunity of being heard in
person by the appeal or cassation court (see Meftah and Others v.
France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41,
ECHR 2002 VII, and the references cited therein).
- Under
the national rules of civil proceedings, the Supreme Court carried
out a supervision which was limited to compliance with the law,
including jurisdictional and procedural rules, to the exclusion of
any examination of the facts in the strict sense, such examination
being within the sole province of the courts below. In the present
case, the Court observes that the first-instance hearing took place
in public. It further notes that the applicant did not file his
defence in reply to the Deputy Solicitor General's appeal on points
of law which was communicated to him (see paragraph 20 above).
-
In addition, the Supreme Court did not adduce any new evidence.
Relying on the facts established by the lower courts, it simply drew
a different conclusion as to the applicant's contribution to the
accident which ultimately affected the amount of the compensation.
The Court finds no indication of arbitrariness in that reasoning.
-
The Court further considers as unsubstantiated the applicant's
complaint that the Supreme Court was not impartial and independent as
he did not provide any evidence that would shed light to that
allegation.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF
THE CONVENTION
- The applicant complained under Article 1 of Protocol
No. 1 of the Convention that, as a result of the Supreme Court's
decision, he would be partly deprived of the compensation he had
already received in the enforcement proceedings. Article 1 of
Protocol No. 1 to the Convention 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.”
- The
Court observes that the applicant's complaint under Article 1 of
Protocol No. 1 relates solely to the outcome of the proceedings. In
the Court's view, regard being had to the structure of the domestic
proceedings as a whole, the circumstances of the case do not
constitute an interference with the applicant's rights under Article
1 of Protocol No. 1.
- Having
regard to the applicable rules of civil proceedings (see “Relevant
domestic law” above), where an appeal on points of law is
admissible, as in the present case, the final appeal court's decision
cannot be regarded as irreversible. The applicant could not have been
unaware of the risk he was taking when bringing the enforcement
proceedings against the employer. He must have known that the Supreme
Court might overturn the Court of Appeal's judgment, annulling or
changing thus the legal ground for the enforcement order. Moreover,
the applicant was aware that the employer had lodged with the Supreme
Court an appeal on points of law, but had decided not to file
submissions in reply (see paragraph 20 above). Such a situation where
the applicant had accepted the risk of a possible different decision
in the subsequent stages of the proceedings cannot be interpreted as
entailing any legitimate expectation on his part (see Arsov v. the
former Yugoslav Republic of Macedonia (dec.), no. 44208/02,
12 May 2005).
- It
follows that this complaint 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.”
A. Damage
- The
applicant claimed MKD 3,116,190 in respect of pecuniary damage. The
sum allegedly corresponded to 50% of the judgment debt with interest
that he had received. He further claimed MKD 4,000,000 (approximately
EUR 65, 400) in respect of non-pecuniary damage for the anguish
suffered as a consequence of the length of the proceedings.
- The
Government contested these claims as unsubstantiated finding no
causal link between the damage claimed and the alleged violation. As
an alternative, they asked 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 does not discern any causal link between the violation found
and the pecuniary damage alleged: it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 800 under that head, plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant also claimed MKD 85,800 (approximately EUR 1,400) for the
costs and expenses incurred before the Court. These included the
lawyer's fees for the preparation of the application and the
observations. Referring to the rate scale of the Macedonian Bar, he
submitted in support information concerning the hours worked.
- The
Government contested this claim as unsubstantiated.
- 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). Regard being had to the information in its possession and
the above criteria, the Court considers it reasonable to award the
applicant the sum of EUR 600 under this head, plus any tax that may
be chargeable.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1, 400 (one
thousand and four hundred euros) in respect of non-pecuniary damage
and costs and expenses, plus any tax that may be chargeable, which
sum is to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
