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FIFTH
SECTION
CASE OF IVANOVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 10541/03)
JUDGMENT
STRASBOURG
15
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 Ivanovska 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 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10541/03) 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 Katica Ivanovska (“the
applicant”), on 7 February 2003.
- The
applicant was represented by Mr K. Čejkovski, a lawyer
practising in Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
18 January 2006 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 1946 and lives in Skopje.
- On
3 December 1986 the then Municipality of Centre, Skopje (“the
Municipality”) expropriated a house, two separate rooms and a
plot of land (“the property”) which had been in the
applicant's and her mother's possessions. The expropriation award
(“the award”) was to be agreed upon by the parties
concerned. After that decision had been set aside, on 27 May 1987
the Municipality decided the case again stating that the award would
be determined in separate proceedings. On 11 July 1987 that decision
became final. On 21 October 1987, after three attempts to settle
before the Municipality had failed because of, apparently, the
applicant's absence, the case was referred to the competent court to
determine the award. These proceedings started on 16 November 1987.
- Between
16 November 1987 and 26 December 1996 the first-instance court fixed
thirty-nine hearings of which: fourteen hearings were adjourned
because of incorrect summons; nine hearings were postponed due to the
applicant's absence; and thirteen hearings were adjourned at the
latter's request. During this time, two expert reports were drawn up
concerning the value of the property. In 1995 the Skopje Court
of First Instance established the applicant and her brother as heirs
of their mother's claim who died in 1989. The impugned proceedings
continued thereafter with the applicant and her brother as claimants.
- On
26 February 1997 the Municipality made an offer of compensation,
which the claimants rejected on 7 April 1997. On 21 April 1997 the
latter proposed another amount allegedly corresponding to the market
value of the property.
- On
19 May 1997 the first-instance court granted the applicant's request
for an additional expert valuation of the property. It adjourned a
hearing listed on 24 September 1997 and ordered the valuation. On
30 October 1997 the applicant requested the court to appoint
another expert arguing that the expert's fee determined by the State
Forensic Institute (“the Institute”) on 24 October 1997
was excessive.
- Hearings
of 25 February, 6 May and 3 June 1998 were adjourned since the
Municipality's representative had been either absent or had failed to
place an offer of compensation.
- On
6 July 1998 the applicant requested another expert report concerning
the property's value. This report was communicated to the court on 28
April 1999. On 14 May 1999 the court returned it to the Institute as
incomplete. On 24 June 1999 the Institute requested the court to
order the applicant to pay expert's fee for the additional opinion.
- A
hearing fixed on 7 February 2000 was adjourned at the Municipality's
request in order to study the expert report. Hearings scheduled
for 7 April and 5 June 2000 were postponed, also at the
Municipality's request.
- Hearings
of 4 October 2000 and 20 June 2001 were adjourned due to the expert's
absence. Hearings fixed for 17 September and 7 November 2001
were adjourned because of absence of the first-instance judge. On a
hearing of 26 December 2001, the court heard evidence from the
parties and the experts who had drawn up the report.
- On
1 February 2002 the Skopje Court of First Instance upheld the
claimants' claim awarding them 2,814,500 Macedonian denars (MKD)
(approximately 46,150 euros) plus interest, to be paid by the City of
Skopje. This decision was served on the parties in August 2002.
- On
22 August 2002 the City of Skopje appealed. On 11 September 2002
the applicant informed the court that she would not file any
submission in reply.
- On
9 October 2002 the Skopje Court of Appeal quashed the decision of 1
February 2002 and remitted the case for a renewed examination
ordering the lower court, inter alia, to determine the
beneficiary of the expropriation, to reassess the evidence and to
re-establish the facts.
- None
of three hearings scheduled between 19 February and 7 July 2003
was adjourned at the applicant's request. During this time, the
first-instance court communicated the case to the Municipality and a
public enterprise and received submissions only by the former.
- On
7 July 2003 the Skopje Court of First Instance awarded the claimants
the same award of compensation as earlier and ordered its payment by
the City of Skopje again. This decision was served on the applicant
on 18 November 2003. No appeal having been lodged, it became final on
30 January 2004.
- On
27 February 2004 the applicant requested enforcement of the above
decision. On 10 September 2004 the award, together with interest (MKD
4,303,326,50 or approximately EUR 70,100), was transferred from the
City of Skopje to the applicant.
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 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
The applicant's “victim status”
-
The Government maintained that the applicant had lost the status of
victim since the amount (the award plus interest) actually paid (see
paragraph 18 above) was nearly twice the amount awarded by the
decision of 7 July 2003.
- The
applicant disagreed with the Government's objection.
- The
Court finds no grounds to distinguish this objection in substance
from the one that had been raised in the Sali case (see
Sali v. the former Yugoslav Republic of Macedonia,
no. 14349/03, § 31, 5 July 2007). In the absence
of any acknowledgement, whether explicit or implicit, on the part of
the national authorities that the applicant's case had not been heard
within a reasonable time, the Court holds that the applicant may
continue to claim to be a “victim” for the purposes of
Article 34 of the Convention (see, mutatis mutandis, Sali,
cited above, §§ 33 and 34).
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes 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. They
maintained that complex circumstances surrounded the examination of
the case by the first-instance court, including: the necessity of
reaching a settlement between the parties; the different requests by
the claimants, some having not been lodged in good time; and the
frequent change of the beneficiary of the expropriation. In this
later context, it was difficult to secure the presence of persons
authorised to represent different beneficiaries.
- As
regards the applicant's conduct, they stated that she was to bear
full responsibility for the protracted length of the proceedings
since: the settlement negotiations had failed due to her absence (see
paragraph 5); several hearings had been adjourned at her request for
an expert valuation of the property; several adjournments had been
ordered with a view to securing an out-of-court settlement with the
other party; the claimants were recognised heirs of their mother's
claim over six years after her death; and she had refused to file a
submission in reply to the City of Skopje's appeal (see paragraph 14)
depriving the court of the opportunity to establish the facts
relevant for its decision-making.
- The
Government further maintained that the national courts had proceeded
with the case with due diligence and that the scheduled hearings had
been held without delays. The courts provided the parties with an
equal opportunity to present their case and to prepare for the
hearings. None of the authorities participating in the proceedings
contributed to the length of the proceedings. In addition, the case
did not require special diligence on the part of the authorities nor
there was a risk that the length of the proceedings would affect the
award.
- The
applicant disputed the Government's arguments about the complexity of
the case arguing that there had been no justification for the
protracted length of the proceedings given that the first decision in
her case had been given in 2002, i.e. nearly fifteen years after the
proceedings had started. She further maintained that she could not be
held responsible for her motions since it was the court which should
decide whether such requests were justified and necessary. Finally,
she submitted that the remittal order had been unnecessary since the
final decision had remained unchanged (see paragraphs 13 and 17
above).
(b) The Court's assessment
- The
Court notes that the impugned proceedings started on 21 October
1987 when the Municipality referred the case to the first-instance
court to determine the award. However, as noted by the Government,
the period which falls within its competence did not begin on that
date but rather 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 Ziberi v. the former Yugoslav
Republic of Macedonia, no. 27866/02, § 41, 5 July
2007). In this connection, the Court notes that at that point the
proceedings had lasted over nine years and five months. No decision
was given within this period.
-
The court proceedings ended on 30 January 2004 when the Skopje Court
of First Instance's decision became final. They therefore lasted over
sixteen years and three months of which over six years and nine
months fall to be examined by the Court for two levels of
jurisdiction. This decision was enforced in September 2004.
- 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 complex nature since the
only fact requiring determination was the amount of the award. Some
complexity arose from the need to request experts' reports, but this
cannot, as of itself, explain the length of the proceedings.
- As
regards the applicant's conduct, the Court considers that she may be
considered responsible for several adjournments during the period
which is not under consideration (see paragraph 6). However, it does
not find substantiated any delay imputable to her in respect of the
period which falls within its competence ratione temporis. As
to her requests for an expert valuation of the property, the Court
notes that it is for the national courts to assess in each and every
situation whether such requests are justified and necessary for the
proper administration of justice (see Graberska v. the former
Yugoslav Republic of Macedonia, no. 6924/03, § 60,
14 June 2007). In addition, an applicant cannot be blamed for
taking full advantage of the resources afforded by national law in
the defence of her interests (see Stojanov v. the former
Yugoslav Republic of Macedonia, no. 34215/02, § 56,
31 May 2007). Finally, the Court disagrees with the Government's
argument that the applicant contributed to the length of the
proceedings by deciding not to file submissions in reply to the
appeal submitted against the first-instance decision of 1 February
2002 (see paragraph 14 above).
- On
the other hand, the Court notes that there are many and substantial
delays attributable to the authorities. Prior to the entry into force
of the Convention in respect of the former Yugoslav Republic of
Macedonia, the proceedings had already been pending before the
first-instance court for over nine years. It took another nearly five
years for the Skopje Court of First Instance to decide the
applicant's case (see paragraphs 5-13). It further observes that it
took five months for the first-instance court to order an expert
valuation of the property after it had previously granted the
applicant's request (see paragraph 8 above); another five months
lapsed for reasons which were beyond the applicant's responsibility
(see paragraph 9 above); no effective activity took place between 7
February 2000 and 26 December 2001 (see paragraphs 11 and 12
above); and, finally, one year and a half lapsed in respect of the
applicant's request for an expert report (see paragraphs 10 and 11
above). In this later respect, the Court reiterates that 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 Stojanov, cited above, § 60
and Scopelliti v. Italy, judgment of 23 November 1993,
Series A no. 278, § 23).
- The
Court accordingly concludes 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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 2,000
under that head.
B. Costs and expenses
- The
applicant did not seek reimbursement for costs and expenses.
Accordingly, the Court does not award any sum in this respect.
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 2,000 (two
thousand euros) in respect of non-pecuniary damage, 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 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
