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FIFTH
SECTION
CASE OF KRSTO NIKOLOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 13904/02)
JUDGMENT
STRASBOURG
23
October 2008
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 Krsto Nikolov v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13904/02) 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 Krsto Nikolov (“the applicant”),
who lives in Štip, on 4 October 2001.
- 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
19 March 2004 and 13
February 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
- By
a judgment of the Štip Municipal Court (“the
first-instance court”) of 14 June 1989 (“the 1989
judgment”), confirmed by the Štip Court of Appeal on 30
October 1989, the applicant and his neighbour (“the
defendant”) were ordered to build a concrete supporting wall
between their adjacent plots of land to protect the applicant's house
from damage. The civil courts found that the applicant should bear
31.4% of the costs, and the defendant 68.6%. The defendant was
ordered to reimburse the applicant for the trial costs. Finally, an
injunction was issued authorising the applicant to build the wall at
the defendant's expense if the latter had failed to do so as
required. The injunction was valid until the 1989 judgment became
final.
- On
12 July 1989 the first-instance court accepted the applicant's
request for enforcement of the 1989 judgment by way of seizure of the
defendant's immovable and immovable assets. The court also ordered
the defendant to deposit his part of the costs for the construction
of the wall (court deposit).
- On
10 September 1990 the first-instance court decided that offers should
be collected for construction of the wall. On 1 October 1991 company
B. (“the construction company”) was chosen to build the
wall. On 22 October 1991 an on-site inspection was carried out.
- On
30 October 1991 the first-instance court ordered the parties to
deposit with it money as established by the 1989 judgment. It further
ordered the defendant to deposit an amount to secure the applicant's
trial and enforcement costs. It was also stated that in case of
non-compliance, the payment would be enforced by an inventory and
public sale of assets. The applicant deposited his part not with the
court, as ordered, but with the construction company.
- Four
hearings fixed between 29 May 1992 and 29 April 1993 were attended by
the applicant. As the defendant failed to deposit the amount
required, the enforcement proceedings continued with the drawing up
an inventory of his belongings. Despite the court's orders of 20 July
and 13 September 1993 requesting the defendant to surrender certain
movable assets to bailiffs, it appears that no items were seized or
sold by the enforcement authorities. In the meantime, the defendant
had constructed a wall. On 30 June 1997 the court made a further
on-site inspection to examine the wall. At a hearing of 23 September
1998, the applicant requested the construction company to use his
deposit to complete the wall so as to comply with the 1989 judgment.
- The
applicant attended the four hearings which were scheduled between 30
April 1999 and 7 June 2001. On 7 December 2001 the first-instance
court ordered the applicant to pay the costs of an on-site
examination under threat of suspension of the proceedings. The
applicant has submitted to the Court a payment slip of 26 December
2001.
- On
27 February 2003 the first-instance court fixed an on-site
examination to be carried out on 25 March 2003 at the defendant's
home with a view to seizing the latter's movable assets. The court
also requested the presence of two policemen in case assistance was
needed. According to the minutes of the on-site examination, the
first-instance court examined the wall again.
- A
hearing listed on 3 October 2003 was adjourned because of the absence
of the sitting judge.
- At
a hearing of 16 March 2004, the first-instance court scheduled
another on-site examination of the wall constructed by the defendant.
The inspection took place on 13 April 2004. The next day, the
applicant paid the expert fees.
- On
15 May 2004 the first-instance court found that the wall constructed
by the defendant in 1993 had not met the criteria established by the
1989 judgment. It further determined that the wall, as constructed,
corresponded to 53.64% of the value of the wall as the court had
ordered, and that the defendant should cover 14.96% of the expenses
for the improvement works. With reference to the 1989 judgment, it
ordered the applicant to cover 31.4% of the expenses for the
improvement works. It established, inter alia, that the
applicant had not deposited, as ordered, his part of the expenses
with the court, but with the construction company, which had not
released him from the obligation established by the 1989 judgment. It
further stated that the applicant, after having realised that the
defendant had constructed part of the wall, should have withdrawn his
deposit from the construction company. Finally, it concluded that the
applicant should have deposited the money with the court and that he
should have required the court to order the construction company to
build the wall. The part of expenses to be borne by the defendant was
to be secured by an inventory and sale of the latter's belongings. On
14 December 2004 the Štip Court of Appeal confirmed that
decision.
- On
5 July 2007 the first-instance court ordered the applicant to deposit
money equivalent to 31.4% of the cost of improving the wall under
threat of suspension of the proceedings. It appears that no such
order was issued against the defendant given the latter's statement
that he would deposit the remaining part after the applicant had done
so. On 23 July 2007 the applicant objected to that order arguing that
he had already made his deposit with the construction company on the
basis of the court decision of 30 October 1991.
- No
further information has been provided as regards the subsequent
enforcement proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the enforcement proceedings
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention. After
that complaint has been communicated to the respondent Government,
the applicant also complained that the protracted length of the
enforcement proceedings had denied him the right of access to a
court. 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
- The
Government did not raise any objection as to the admissibility of the
“reasonable time” complaint. The Court notes that the
applicant's complaint concerning his right of access to a court is in
fact restatement of his complaint about the length of the enforcement
proceedings and will be considered accordingly. In that context, it
finds that the “reasonable time” complaint 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
1. The parties' submissions
- The
Government admitted that the enforcement proceedings had been too
long, but considered that they had been conducted in accordance with
the law, and that the length had not been due to failures to act on
the part of State institutions. The parties had been in dispute about
the proportion of their financial contribution for the construction
of the wall. They further stated that the applicant had contributed
to the length of the proceedings. In that latter context, they
maintained that he had failed to pay the costs for the on-site
examination of the wall constructed by the defendant, which fact had
led to the suspension of the proceedings for nearly a year and three
months (see paragraphs 9 and 10, above).
- The
applicant submitted that the domestic courts had not conducted the
enforcement proceedings in an efficient and diligent manner. Despite
the seizure orders of 1993, no movable assets had ever been
confiscated from the defendant. He further contested the Government's
argument that some delays were attributable to him and stated that
the proceedings had never been suspended. On the contrary, his case
had been archived for some time as the courts had wrongly regarded it
as finished. In addition, the enforcement proceedings aimed at
execution of a final court decision – their purpose was not, as
argued by the Government, to settle any dispute between the parties.
Finally, he maintained that six different judges sat in his case.
2. The Court's consideration
- The
Court notes that, in its 1989 judgment, the first-instance court
ordered the parties jointly to build a supporting wall and specified
the financial contribution to be made by each of them. The
enforcement proceedings which the applicant instituted on 12 July
1989 appear to be still pending. The impugned situation has thus
already been continuing for nearly nineteen years, of which over
eleven years fall within the Court's jurisdiction ratione temporis
(since the ratification of the Convention by the respondent State on
10 April 1997) for two court levels. The Court further observes that,
in order to determine the reasonableness of the period in question,
regard must also be had to the state of the case on the date of
ratification (see, mutatis mutandis, Styranowski v. Poland,
judgment of 30 October 1998, Reports 1998-VIII) and notes that
on 10 April 1997, the enforcement proceedings complained of had
already been pending for nearly seven years and nine months. During
this period, the first-instance court selected the construction
company, went on-site once and drew up an inventory of the defendants
movable assets.
21. The Court reiterates that, according to its established
case-law, Article 6 § 1 of the Convention, secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it
embodies the "right to a court", of which the right of
access, that is the right to institute proceedings before courts in
civil matters, constitutes one aspect. However, that right would be
illusory if a Contracting State's domestic legal system allowed a
final, binding judicial decision to remain inoperative to the
detriment of one party. Execution of a judgment given by any court
must therefore be regarded as an integral part of the “trial”
for the purposes of Article 6. It further recalls that Article 6 §
1 of the Convention requires that all stages of legal proceedings for
the “determination of ... civil rights and obligations”,
not excluding stages subsequent to judgment on the merits, be
resolved within a reasonable time. 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 Miltenovic v. the former Yugoslav Republic of Macedonia
(dec.), no. 26615/02, 19 June 2006).
- In
that connection , 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, also
concerning enforcement proceedings, Atanasovic and Others v. the
former Yugoslav Republic of Macedonia, no. 13886/02, § 33,
22 December 2005, and the references cited therein).
- The
Court does not under-estimate the difficulties in enforcing civil
judgments, particularly in the context of boundary disputes. Further,
the State's responsibility for enforcement of a private judgment
extends no further than the involvement of State bodies, including
the domestic courts, in the enforcement proceedings (see Fuklev v.
Ukraine, no. 71186/01, § 67, 7 June 2005).
- Turning
to the present case, the Court considers that the Government did not
present any evidence that the enforcement of the 1989 judgment was
complex. Nor did they substantiate their allegations that the
applicant had contributed to the length of the proceedings. In
particular, the Court notes that the applicant attended all scheduled
hearings and made the advance payment of the enforcement costs as
required (see paragraph 9 above). As to the Government's assertion
that the proceedings were suspended due to the applicant's fault, it
is true that on 7 December 2001 the first-instance court instructed
the applicant that if he did not pay the costs of an on-site
examination, the proceedings would be suspended. However, the
applicant has submitted a payment slip of 26 December 2001, and the
Court's attention has not been drawn to any court decision by which
the proceedings were suspended. Accordingly, there is no indication
that the proceedings were suspended, or that the applicant was
responsible for any such suspension.
- Significant
delays were attributable to the State which stemmed primarily from
the long intervals between the scheduled hearings. For example, it
took over a year and two months for the court to summon the parties
after the applicant had paid the costs for an on-site examination
(see paragraphs 9 and 10 above); six months lapsed between the
on-site examination of 25 March and the hearing dated 3 October 2003.
In addition, it appears that the proceedings lay dormant for nearly
two years and seven months after the Court of Appeal's decision of 14
December 2004 (see paragraphs 13 and 14 above). Three on-site
inspections (see paragraphs 8, 10 and 12 above) carried out during
the period under consideration also added much to the length of the
proceedings.
- The
Court reiterates that the State has an obligation to organise a
system for the enforcement of judgments that is effective both in law
and in practice and ensures their enforcement without undue delay
(see MuZević v. Croatia, no. 39299/02, § 84,
16 November 2006 and Fuklev v. Ukraine, no. 71186/01, § 84,
7 June 2005).
- Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the enforcement 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
the reply to the Government's observations and by the letter
submitted on 27 January 2005, the applicant also complained 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. He relied on Article 13 of the Convention, which reads
as following:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government did not comment on the matter.
- The
Court considers that this complaint is linked to the one examined
above and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It further notes that the Government have already
acknowledged the lack of an effective remedy in respect of the length
of proceedings under the rules applicable at that time (see Kostovska
v. the former Yugoslav Republic of Macedonia, cited above
§ § 48-53; Atanasovic and Others v. the former
Yugoslav Republic of Macedonia, cited above, §§ 42-47).
It therefore, sees no reason to reach a different conclusion in the
present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicant could have obtained a
ruling upholding his right to have his case heard within a reasonable
time, as set forth in Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the reply to the Government's observations and by the subsequent
letter of 27 January 2005, the
applicant raised the following complaints under Article 6 § 1 of
the Convention: that the courts had decided his case arbitrarily;
that the Court of Appeal had not provided sufficient reasons for its
decision; and that the judges had lacked impartiality.
- He
also invoked Article 1 of Protocol No. 1 alleging that
the deposit he had paid to the construction company in 1991 and the
trial costs awarded by the 1989 judgment had devaluated over time
which signified a violation of his right to peaceful enjoyment of his
possessions. He also complained under this head that the costs of
enforcement had increased due to the unreasonable length of the
proceedings.
- The
Court has examined the remainder of the applicant's complaints and
finds that, in the light of all the materials in its possession, and
in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application 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 1,639,579 Macedonian denars (MKD) plus interest to
be calculated as of 23 August 2004 in respect of pecuniary damage.
This figure concerned the amounts described in paragraph 35 above,
including the currency denomination and devaluation. An expert report
was submitted in that respect. He further claimed 50,000 euros (EUR)
in respect of non-pecuniary damage for the emotional stress, anxiety
and uncertainty suffered as a result of the length of the impugned
proceedings.
- 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 a possible 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 the Government, does not discern any causal link between
the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR
5,300 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed MKD 42,490 for the costs and expenses incurred in
the enforcement proceedings. He also claimed EUR 5,000 under this
head, without specifying whether this sum of money was incurred
before the domestic courts or before this Court. As to this latter
claim, he did not provide any supporting document.
- The
Government contested the claim as unsubstantiated.
- According
to the Court's case-law, an award can be made in respect of costs and
expenses only in so far as they have been actually and necessarily
incurred by the applicant and are reasonable as to quantum (see
Kostovska, cited above, § 62; Arvelakis v. Greece,
no. 41354/98, § 34, 12 April 2001; Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR
1999-II). As to the costs and expenses incurred in the proceedings
before the domestic courts, the Court notes that such costs were not
incurred in order to seek through the domestic legal order prevention
and redress of the alleged violation complained of before the Court
(see Milošević v. the former Yugoslav Republic of
Macedonia, no. 15056/02, § 34, 20 April 2006). It
further considers that the applicant can seek reimbursement of these
costs domestically.
- As
to the remaining claim under this head, the Court points out that
under Rule 60 of the Rules of Court “the applicant must submit
itemised particulars of all claims, together with any relevant
supporting documents failing which the Chamber may reject the claim
in whole or in part”. The Court notes that the applicant did
not submit any supporting documents or particulars to substantiate
his claim.
- Accordingly,
the Court does not award any sum under this head.
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 complaints concerning the excessive
length of the proceedings and the lack of remedies in that respect
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 5,300 (five
thousand and three hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the national currency of the respondent State at the rate applicable
at 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;
5. Dismisses the remainder of the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
