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FIFTH
SECTION
CASE OF LAZAREVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 22931/03)
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 Lazarevska 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 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22931/03) against the
former Yugoslav Republic of Macedonia lodged with the
Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Macedonian national, Ms Anica Lazarevska (“the applicant”),
on 9 July 2003.
- The
applicant was represented by Mr S. Talevski, a lawyer practising in
Bitola. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
11 October 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 1969 and lives in Bitola.
- The
applicant worked in a private company Megaplast (“the
employer”) as a manual worker on a hydraulic compressing
machine between 1 December 1995 and 23 November 1996 when
an accident happened in which the machine crushed her left hand. As a
result, two fingers were amputated.
1. Civil proceedings for damages
- On
27 May 1997 the applicant brought before the Bitola Court of
First Instance a civil action for damages for the injuries sustained
in the accident.
- On
29 May 1997 the court provided the applicant with a warning letter
requesting her to pay the court fees.
- On
24 April 1998 the applicant requested the court to fix a
hearing.
- On
29 May 1998 the court held a preparatory hearing (подготвително
рочиште) during
which the employer declared its intention to submit a counter-claim
(противтужба)
for compensation for the pecuniary loss caused in releasing the
applicant's fingers from the machine and for loss of income. The
court stated that it would schedule a hearing after the employer
lodged its counter-claim.
-
On 24 June 1998 the employer submitted the counter-claim and
observations in reply to the applicant's claim.
-
On 19 March 1999 the court ordered an expert examination.
-
On 31 March 1999 the court carried out an on-site inspection. On
14 April 1999 the expert submitted his report. On 21 April 1999
another expert drew up a further report.
-
On 14 December 1999 a medical examination was completed
concerning the severity of her injuries and the degree of pain
sustained by her.
- A
hearing fixed for 2 March 2000 was adjourned at the employer's
request. The court ordered witnesses to be summoned for examination.
-
At a hearing of 20 March 2000 the trial re-started as a different
panel of judges (судски
совет) had taken over the
case. The court adjourned the hearing as the witnesses were not
properly summoned and the employer disputed the expert reports.
-
Hearings dated 20 April and 19 May 2000 were postponed because the
witnesses and the experts were incorrectly summoned. At the latter
hearing, the composition of the panel of judges was changed.
-
On 15 June 2000 the trial again re-started as the composition of the
panel of judges changed. The court examined two witnesses, the
parties concerned and one of the experts. It adjourned the hearing so
that the expert would submit an additional report based on the
employer's comments.
-
On 7 July 2000 the Bitola Court of First Instance partially
upheld the applicant's claim and awarded non-pecuniary damages in
foreign currency to be converted into Macedonian denar. It also
dismissed the employer's counter-claim.
-
On 10 July 2000 the applicant requested the court to exempt her from
paying the court fees (судска
такса) because of lack of
funds.
-
On 17 November 2000 the employer appealed. On 8 May 2001 the file was
transferred to the court of appeal for consideration. In the
meantime, the trial court had ordered the parties to pay the court
fees. On 23 April 2001 it ordered the
Public Payment Office (Завод
за Платен Промет)
to transfer the amount due from the employer's account.
-
On 5 April 2001 bankruptcy proceedings were instituted against the
employer. On the same date they were completed.
- On
7 June 2001 the Bitola Court of Appeal quashed the lower court's
decision concerning the amount of the award and remitted that part
for fresh consideration. It endorsed the reasons given by the trial
court, but considered it unlawful to award damages in foreign
currency. It further instructed the trial court to order the
applicant to further particularise her claim in the correct currency.
It also upheld the dismissal of the employer's counter-claim.
-
On 12 June 2001 the first-instance court received the case-file from
the appellate court.
-
On 31 March 2003 the employer's representative informed the court
that the employer had ceased to exist.
-
On 11 April 2003 the Bitola Court of First Instance rejected the
applicant's claim as the employer had ceased to exist. None of the
parties attended the hearing despite being properly summoned. The
decision was served on the parties on 5 May 2003.
-
On 13 May 2003 the applicant appealed arguing that the trial court
should have terminated the proceedings instead of rejecting her
claim.
-
On 20 October 2003 the court ordered the Public Revenue Office
(Управа за
Јавни Приходи)
(“the Office”) to collect the court fees from the
applicant. In that respect, on 22 December 2003 the Office submitted
a warning letter to the applicant.
-
On 22 January 2004 the Bitola Court of Appeal dismissed the
applicant's appeal and upheld the trial court's decision. It was
served on the applicant on 16 February 2004.
2. Criminal proceedings for alleged fraudulent
insolvency
-
On 12 December 2003 the public prosecutor rejected the applicant's
criminal charges for fraudulent insolvency brought against the
employer's founders. She took over the prosecution as a subsidiary
complainant. On 14 December 2004 the investigating judge of the
Bitola Court of First Instance allowed her criminal complaint and
initiated an investigation against the employer's founders.
-
On 7 July 2005 the Bitola Court of First Instance acquitted the
accused. The applicant was further instructed to institute separate
civil proceedings for damages.
-
On 3 October 2005 the applicant appealed.
-
On 11 January 2006 the Bitola Court of Appeal dismissed the appeal
and upheld the lower court's decision. It was served on the applicant
on 20 January 2006.
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
efficiently and to prevent any attempted abuse of the rights afforded
to the parties concerned.
- Section
300 (1) of the Act provided that, following an adjournment of a
hearing, the new hearing should be held, if possible, before the same
panel of judges. Section 300 (3) of the Act provided that, inter
alia, if a hearing was held before a different composition of the
panel of judges, the trial should re-start.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings was
incompatible with the “reasonable time” requirement of
this Article. In the observations received by the Court on 14 March
2006, the applicant further complained in substance about the length
of the criminal proceedings. 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 ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. As to the civil proceedings
- The
Government submitted that the applicant did not exhaust domestic
remedies as she had lodged the application with the Court while the
domestic appeal proceedings were still pending. The domestic courts
were accordingly denied the opportunity to decide the applicant's
case on merits.
- The
applicant disagreed arguing that the complaint about the length of
the proceedings could be submitted before this Court even when the
domestic proceedings had not been completed.
- The Court notes its settled case law to the effect
that it could consider a complaint about the length of proceedings
pending before the domestic authorities (see, mutatis mutandis,
Milošević v. the former Yugoslav Republic of
Macedonia, no. 15056/02, 20 April 2006; Atanasovic and Others
v. the former Yugoslav Republic of Macedonia, no. 13886/02,
22 December 2005). It further observes that the complaint about
a procedural delay under Article 6 § 1 of the Convention should
be distinguished from the substantive dispute decided by the domestic
courts. In the present case, the appellate court was called upon to
determine the applicant's compensation claim on its merits.
- The
Court therefore considers that the applicant was not required to
exhaust the ordinary appeal proceedings before bringing her complaint
before the Court.
- It
follows that the Government's preliminary objection must be rejected.
- The
Court considers that the complaint about the length of the civil
proceedings 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. As to the criminal proceedings
- The
criminal proceedings concerned the criminal charges for fraudulent
insolvency brought by the applicant against the founders of the
employer. The Court considers the applicant's complaint, which was
not introduced by the initial application, incompatible ratione
materiae with the Convention, as the latter does not generally
provide for a right of prosecution of third parties (see Jakimovski
v. the former Yugoslav Republic of Macedonia (dec.), no.
26657/02, 23 October 2006; Trajkovski and others v. the former
Yugoslav Republic of Macedonia (dec.), no. 13191/02, 1 December
2005).
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
B. Merits
1. The parties' submissions
- The
Government submitted that the case concerned complex issues which
required special diligence on the part of the courts. They cited the
expert examinations and the on-site inspection carried out during the
proceedings; the number of witnesses examined; and the incorrect
delivery of court summons. In addition, the domestic courts were
called upon to decide simultaneously the claims of both parties to
the proceedings.
- As
to the parties' conduct, the Government stated that the one-year
delay between the introduction of the applicant's claim and the
preparatory hearing was the employer's fault. The trial court
insisted on the employer submitting its observations in reply to the
applicant's claim, although such observations had not been
obligatory.
- They
also referred to the applicant's failure to pay the court fees in
time (see paragraphs 7 and 27 above). It was the applicant's
inactivity that caused a delay of nearly one year and nine months
following the appellate court's decision of 7 June 2001 (see
paragraphs 21-25 above). They further maintained that she should have
further particularised, of her own motion, her claim in accordance
with the appellate court's instructions without waiting to be ordered
by the trial court to do so. In addition, she was aware of the
employer's insolvency and that fact motivated her not to request the
court to expedite the proceedings. They therefore wondered whether
the period following the appellate court's decision of 7 June
2001 should be taken into consideration, since the proceedings were,
for all practical purposes, regarded by the applicant as already
terminated. They further argued that the applicant failed to apply to
expedite the proceedings.
- The
Government further averred that the national courts had proceeded
with the case with due diligence and that the scheduled hearings had
been held without any interruptions or delays.
- The
applicant disputed the Government's position arguing that the State
had been responsible for several delays (notably the delay between
the introduction of the claim and the first hearing scheduled; and
the excessive time elapsed between the Court of Appeal's decision of
7 June 2001 and the trial court's hearing of 11 April 2003). She
further disputed that her alleged failure to pay the court fees
contributed to the length of the proceedings. She maintained her
position that her case was not heard within a reasonable time despite
the urgent nature of the dispute.
2. The Court's assessment
- The
Court notes that the proceedings started on 27
May 1997 when the applicant introduced the compensation claim before
the Bitola Court of First Instance. The dispute was finally
determined with the appellate court's decision of 22 January 2004.
The proceedings ended on 16 February 2004 when that decision was
served on the applicant. They therefore lasted six years, eight
months and twenty-one days for two levels of jurisdiction.
50. 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 Arsov v. the former Yugoslav Republic of Macedonia, no.
44208/02, § 37, 19 October 2006, and the references cited
therein).
-
The Court considers that the case was not of a particularly complex
nature. It can accept that its complexity increased due to the expert
examinations, however that cannot of itself explain the length of the
proceedings.
-
Concerning the applicant's conduct, the Court finds that no periods
of delay are attributable to her. The Government did not present any
convincing evidence that her alleged failure to pay the court fees in
time contributed to the length of the proceedings. In addition, it
considers speculative the Government's argument that she was aware of
the employer's insolvency, as no substantiated evidence was produced
in support. Moreover, it finds difficult to accept their argument,
that following the appellate court's decision of June 2001, the
applicant should have further particularised her claim on her own
motion, as that court's instructions were addressed to the trial
court which should have, in turn, issued the relevant instructions.
Finally, the Government did not specify what effective remedies the
applicant should have availed herself of to expedite the proceedings.
- 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).
-
Having regard to the material submitted before it, the Court finds a
number of delays imputable to the State: it took the trial court one
year to fix a hearing following the submission of the applicant's
claim (see paragraphs 6 and 9 above); nearly nine months lapsed
between the introduction of the employer's counter-claim and the
hearing of 19 March 1999 (see paragraphs 10 and 11 above);
a total delay of nearly one year resulted from the trial court's
requests for expert examinations of the parties' claims (see
paragraphs 12-14 above). As to the latter, the Court notes that the
principal responsibility for a delay caused by the expert
examinations rests ultimately with the State (see Capuano
v. Italy, judgment of 25 June 1987, Series A
no. 119, § 32). In addition, the Court points out that
the experts were 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). Furthermore, the trial court was required under
section 300 (3) of the Act (see paragraph 34 above) to restart the
trial after every change of the composition of the panel of judges
(see paragraphs 15-17 above) which added to the length of the
proceedings. Finally, the proceedings lay dormant for nearly one year
and ten months following the appellate court's decision of 7 June
2001 (see paragraphs 23-25), a period during which the trial court
did not take any procedural step. That period cannot be attributed to
the applicant for the reasons stated above (see paragraph 52 above).
55. The Court further recalls 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 these circumstances and to what was at stake for the
applicant, the Court considers that 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
- The
applicant claimed 46,302 euros (EUR) in respect of non-pecuniary
damage for the pain, fear and disfigurement sustained as a result of
the accident. That sum corresponded to twice the amount awarded by
the trial court's decision of 7 July 2000 plus interest.
- The
Government did not express an opinion on the matter given in the
applicant's reply to their observations.
- The
Court observes that the applicant claimed compensation for
non-pecuniary damage for the pain, fear and disfigurement sustained
as a result of the accident. It notes that she did not claim any
damage as a consequence of the length of the proceedings. The Court
does not discern any causal link between the violation found and the
damage alleged; it therefore rejects this claim.
B. Costs and expenses
- The
applicant also claimed EUR 3,644 for the costs and expenses incurred
before the domestic courts and EUR 1,056 for those incurred before
this Court. These included her lawyer's fees. In addition, she
claimed EUR 165 for translation costs and an additional EUR 1,000 for
unexpected costs before this Court. She did not produce a fee note
nor any document supporting her claims, apart from the invoice
concerning the translation costs.
- The
Government did not express an opinion on the matter given in the
applicant's reply to their observations.
- Concerning the applicant's request for reimbursement
of the costs incurred in the proceedings before the national
authorities, the Court reiterates that legal costs are only
recoverable in so far as they relate to the violation found (see
Ernestina Zullo v. Italy [GC], no. 64897/01, § 153,
29 March 2006; Belvedere Alberghiera S.r.l. v.
Italy (just satisfaction), no. 31524/96, § 45, 30
October 2003; Van de Hurk v. the Netherlands, judgment of 19
April 1994, Series A no. 288, § 66). As such costs were not
incurred in seeking through the domestic legal order prevention and
redress of the alleged violation complained of, the Court does not
award any sum under this head (see Milošević v. the
former Yugoslav Republic of Macedonia, no. 15056/02, § 34,
20 April 2006).
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses before this Court 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, the Court notes that the
applicant did not provide any supporting documents concerning the
legal fees and the bill produced justified only the translation
costs. As the Government did not contest the applicant's claim made
in her reply to their observations and regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600 for costs and
expenses for the proceedings before it, 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 civil 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 600 (six
hundred euros) in respect of 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
