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FIFTH
SECTION
CASE OF STOJKOVIC v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 14818/02)
JUDGMENT
STRASBOURG
8
November 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 Stojkovic 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,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14818/02) 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 Zivko Stojkovic (“the applicant”), on 8 March
2002. On 26 August 2004 the Registry was informed that the applicant
had died on 31 October 2002. His wife, Mrs Stojna Stojkovic, and
their two daughters, Ms Marija Stojkovic and Ms Tatjana Stankovska,
applied to continue the application in his name and
designated the same counsel to represent them. For the reason
of convenience, they will be referred to as “the applicant's
successors”.
- The
applicant was represented by Mr T. Torov, a lawyer practising in
Štip. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
12 March 2004 and 30
January 2006, respectively the Court decided to communicate the
complaints concerning the length of the proceedings and the lack of
remedies in that respect 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
- Between
5 July and 27 December 1991 the applicant worked as a manager of a
joint stock company (“the employer”). On 7 February 1992
he was dismissed by the employer's disciplinary commission, a
decision which was confirmed by the executive board on 17 March 1992.
- On
23 March 1992 the applicant brought an action against the employer to
annul his dismissal and for his reinstatement as a manager.
- On
16 June 1992 the then Štip Municipal Court (Општински
Суд Штип) dismissed his
claim.
- On
25 January 1993 the then Štip District Court (Окружен
Суд Штип) upheld his
appeal of 19 November 1992 and remitted the case for a
re-examination.
- Of
nine hearings scheduled before the first-instance court, none was
adjourned at the applicant's request.
- On
29 December 1993 the then Municipal Court dismissed his claim. That
decision was upheld by then District Court's decision of
30 March 1994 dismissing his appeal of 10 February 1994.
-
On 30 May 1994 the applicant lodged an appeal on points of law
(ревизија)
which was granted by the Supreme Court's decision of
20 December 1995. On 22 February 1996 the then District Court
again upheld the first-instance decision of 29 December 1993.
-
On 17 April 1996 the applicant submitted a fresh appeal on points of
law before the Supreme Court. On 20 November 1997 the Supreme Court
quashed both the first- and second-instance decisions and remitted
the case for a renewed examination. It ruled that the lower courts
had erroneously established that the employer's meeting of
shareholders (собрание
на акционери)
and the strike board (штрајкувачки
одбор)
had discharged the applicant as the employer's manager prior
to the disciplinary commission having given the dismissal decision
(see paragraph 4 above). According to the minutes of their meeting of
27 December 1991, they had only voted against him, but had left the
matter to be decided by the disciplinary commission.
-
On 29 May 1998 the applicant requested the removal of the
first-instance judge for bias. On 3 June 1998 the President of the
Štip Court of First Instance dismissed that request as
unsubstantiated.
-
According to the information submitted by the parties, none of the
six hearings fixed by the first-instance court was adjourned at the
applicant's request.
-
On 17 December 1998 the Štip Court of First Instance annulled
the 1992 dismissal order finding that it was not given by an
authorised body. However, it dismissed the applicant's claim for his
reinstatement to a post corresponding to his qualifications since
bankruptcy proceedings had been meanwhile launched against the
employer. The employer's receiver (стечаен
управник)
could decide the reinstatement issue.
-
On 29 December 1999 the Court of Appeal quashed this decision as
incoherent and ordered a retrial arguing that the lower court had
erred in establishing the facts concerning the body competent to
decide on the dismissal.
-
After three hearings being fixed, on 24 April 2001 the Štip
Court of First Instance dismissed the applicant's claims finding
that: he was discharged as the employer's manager by the executive
board on 27 December 1991; under an application for disciplinary
proceedings submitted by the strike board, the newly appointed
manager requested the disciplinary commission to dismiss him for
having committed serious work-related violations, which was actually
done by the commission's decision of 7 February 1992; and the
executive board dismissed his objection by decision of 17 March 1992.
The court therefore concluded that the applicant's claims were
ill-founded. This decision was given by another first-instance judge.
On 29 November 2001 the Court of Appeal upheld this decision.
-
On 21 January 2002 the applicant submitted an appeal on points of law
before the Supreme Court arguing that the lower courts had wrongly
established and assessed the facts.
- The
applicant died on 31 October 2002.
-
On 11 September 2003 the Supreme Court finally dismissed his appeal
finding that the lower courts had properly established the facts and
correctly applied the national law. According to a note written on
the slip receipt, on 3 December 2003 there was an unsuccessful
attempt to serve this decision due to the applicant's death. The
applicant's successors maintained that they learnt about this
decision only on 29 July 2004 when they received the Government's
observations. The Government did not contest that assertion.
-
During the proceedings, the applicant applied several times to the
first-instance court to expedite the proceedings. His requests for
priority treatment submitted before the Supreme Court were refused.
He also notified the State Judicial Council about the protracted
length of the proceedings.
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 avoid 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.
- Section
36 of the Courts Act (Закон
за судовите)
of 2006 (“the 2006 Act”) provides that a party
concerned can lodge with the immediate higher court (непосредно
повисокиот
суд) an application for the protection
of the right to a hearing within a reasonable time if he/she
considers that it has been violated by a court of competent
jurisdiction. The immediate higher court considers the application
(постапува
по барањето)
within six months after it has been lodged and decides
whether the court below violated the right to a hearing within a
reasonable time. The higher court shall award just satisfaction to
the claimant if it finds a violation of the right to a hearing within
a reasonable time. The just satisfaction shall be paid from the
State's budget. The 2006 Act became applicable on 1 January 2007
(section 128).
THE LAW
I. ALLEGED VIOLATION OF THE “REASONABLE TIME”
REQUIREMENT UNDER ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant initially complained that the length of the proceedings was
incompatible with the “reasonable time” requirement, laid
down in 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 fair ... hearing within a
reasonable time... by [a] ... tribunal...”
A. Admissibility
1. The “victim” status of the applicant's
successors
-
The Court recalls that in a number of cases in which an applicant
died in the course of the proceedings, the Court has taken into
account the statements of the applicant's heirs or of close family
members expressing the wish to pursue the proceedings before the
Court (see Karner v. Austria, no. 40016/98, § 22,
ECHR 2003 IX, with further references). This is particularly the
case concerning applications which were introduced by the applicant
himself and only continued by his widow after his subsequent death
(see Dalban v. Romania [GC], no. 28114/95, ECHR
1999 VI).
-
In the circumstances of the present case, the Court considers that
the applicant's successors have the requisite locus standi
under Article 34 of the Convention in respect of the applicant's
complaint about the length of the proceedings (see Vocaturo v.
Italy, judgment of 24 May 1991, Series A no. 206 C,
§ 2).
- The
Government did not dispute the admissibility of this complaint.
- 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.
B. Merits
(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.
-
Concerning the conduct of the domestic courts, the Government argued
that they decided the applicant's case with due diligence and that
the scheduled hearings were held without any interruptions and
delays. They further maintained that the impugned proceedings were
composed of a number of separate actions, each starting after a
remittal order was made, and that none of them lasted unreasonably
long. In addition, the subject-matter of the dispute affected the
complexity of the case and the courts examined considerable evidence
to establish the facts. The civil proceedings were based on the
principle of the autonomy of parties and the courts were bound by the
parties' conduct.
-
As regards the applicant's conduct, they submitted that he had
contributed to the length by availing himself of all legal remedies
available.
- The
applicant's successors argued that the courts had held numerous
hearings at excessive intervals. They also addressed the late service
of court decisions, in particular the last Supreme Court's decision
of September 2003 which has never been served on them. They further
contested the Government's arguments about the complexity of the case
arguing that it was a simple employment-related matter which required
urgent settlement. They also disagreed that the applicant had
contributed to the length of the proceedings by taking advantage of
the resources afforded by national law. Referring to his letters sent
to different institutions, they maintained that the applicant applied
to expedite the proceedings. Finally, the applicant's successors
underlined what was at stake for him and the national courts'
responsibility to decide his case with due expedience given his
health.
(b) The Court's assessment
- The
Court notes that the civil proceedings started on 23 March 1992 when
the applicant brought his claim before the then Štip Municipal
Court. However, as argued by the Government, the period which falls
within its jurisdiction did not begin on that date, but 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 and 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 over five years for
three court levels. The then District Court's decision of 22 February
1996 was the last decision given within this time.
- For
the reasons detailed in the Arsov case (see Arsov v.
the former Yugoslav Republic of Macedonia, no. 44208/02,
§ 41, 19 October 2006), the Court finds that the
proceedings complained of should be considered as one single
procedure. It further considers that the proceedings ended on
29 July 2004 given that the Government did not dispute the
applicant's successors' assertion about the date of service of the
Supreme Court's decision of 11 September 2003 (see paragraph 19
above). The proceedings therefore lasted over twelve years and one
month of which over seven years and three months fall to be examined
by the Court 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 finds that the case was of some factual complexity, but that
that cannot of itself explain the length of the proceedings.
-
The Court further considers that no periods of delay are imputable to
the applicant. He attended all hearings as scheduled. His 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). The
mere fact that he made full use of the remedies available under
domestic law cannot be considered as contributing to the length of
the proceedings (see Lickov, cited above, § 28).
-
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 and Muti v. Italy, judgment of 23 March 1994,
Series A no. 281 C, § 15).
- In
this respect, the Court notes that the case was reconsidered on four
occasions. Two remittal orders were made during the time which falls
within its competence ratione temporis. The domestic courts
thus cannot be said to have been inactive. However, while the Court
is not in a position to analyse the quality of the case-law of the
domestic courts, the remittal of cases for re-examination is usually
ordered as a result of errors committed by lower courts, so that the
repetition of such orders within one set of proceedings must be
considered to disclose a serious deficiency in the judicial system
(see Pavlyulynets v. Ukraine, no. 70767/01, § 51,
6 September 2005 and Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
- 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 21 above) provided that “it was incumbent upon the
court to undertake to conduct the proceedings without undue delay”.
The courts therefore remain 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).
Moreover, the domestic law (see paragraph 22 above) and the Court's
jurisprudence (see, mutatis mutandis, Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, § 17 and
Obermeier v. Austria, judgment of 28 June 1990,
Series A no. 179, § 72) required employment-related
disputes to be conducted with a special diligence.
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case and what was at stake for the
applicant, the Court considers that the length of the proceedings
complained of, failed to satisfy the reasonable-time requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
submission received by the Court on 26 August 2004, the applicant's
successors complained under Article 6 § 1 of the Convention
about the alleged unfairness of the proceedings. They further
complained under Article 7 that the applicant was dismissed in
disciplinary proceedings under the employer's internal regulations
that had not been valid at the material time. Relying on Article 13
they also complained of the fact that in the former Yugoslav Republic
of Macedonia there was no court to which application could be made to
complain of the excessive length of proceedings. They finally alleged
violation of Article 1 of Protocol No. 1 that the applicant had been
deprived of unpaid salaries as a result of his dismissal.
-
The Court observes that the applicant died on 31 October 2002. The
complaints under this head were introduced by the applicant's
successors after his death as opposed to the length-of-proceedings
complaint, which was introduced by the applicant himself and
continued by them after his death.
-
In this respect, the Court reiterates that the existence of a victim
of a violation, namely, an individual who is personally affected by
an alleged violation of a Convention right, is indispensable for
putting the protection mechanism of the Convention into motion,
although this criterion is not to be applied in a rigid, mechanical
and inflexible way throughout the proceedings (see Karner,
cited above, § 25).
- In
the circumstances of the present case, the applicant's successors do
not have the requisite standing under Article 34 of the Convention in
respect of the alleged violations of the Convention under this head
(see, mutatis mutandis, Fairfield and Others v. the United
Kingdom (dec.), no. 24790/04, 8 March 2005).
- These
complaints are therefore incompatible ratione personae with
the provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
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's successors claimed 31,300 euros (EUR) in respect of
pecuniary damage and EUR 135,000 for non-pecuniary damage. They
maintained that the applicant's death was a direct consequence of the
length of the proceedings. As a result, they claimed EUR 2,500 for
the funeral costs and the remaining EUR 28,800 concerned the total
salary that he would have received if he had reached the average age
of 70. In this latter context, the applicant's successors referred to
an expert report of 2004 which concerned the applicant's unpaid
salary between his dismissal and the date of his death. The
non-pecuniary damage was for the emotional stress allegedly caused by
the applicant's illness and his subsequent death. According to a
medical report of 2004, the stress caused by the impugned proceedings
affected his medical treatment. The applicant's successors further
claimed 8,162,906 Macedonian denars in respect of pecuniary damage
for the alleged violations of Articles 6 (the alleged unfairness of
the proceedings), 7 and Article 1 of Protocol No. 1.
- The
Government contested these claims as unsubstantiated. They further
maintained that there was no causal link between the pecuniary damage
claimed and the alleged violation. 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. 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, as argued by the Government, does not discern any causal link
between the violation found and the pecuniary damage alleged; it
therefore rejects this claim. It also rejects the applicant's
successors' claim in respect of the remaining complaints as having
been declared inadmissible. On the other hand, it considers that the
applicant must have sustained non-pecuniary damage in respect of the
violation found. Ruling on an equitable basis, it awards a total sum
of EUR 2,000 under that head.
B. Costs and expenses
- The
applicant's successors also claimed EUR 5,000 in costs and expenses,
without specifying whether they were incurred before the domestic
courts or before this Court. They did not provide any supporting
document.
- The
Government contested the 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, cited above, § 62; Arvelakis
v. Greece, no. 41354/98, § 34, 12 April 2001
and Nikolova v. Bulgaria [GC], no. 31195/96, § 79,
ECHR 1999-II). The Court finds that the amount claimed is
unreasonable as to quantum. However, regard being had to the above
criteria and in particular the scope of work done by the applicant's
representative (the preparation and submission of the application and
the replies to the Government's observations), it considers
reasonable 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
- 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's successors, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
a total sum of EUR 2,600 (two thousand and six hundred 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;
- Dismisses the remainder of the applicant's
successors' claim for just satisfaction.
Done in English, and notified in writing on 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
