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FIFTH
SECTION
CASE OF MANEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 22742/02)
JUDGMENT
STRASBOURG
19 June 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 Manevski 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,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22742/02) 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 Aleksandar Manevski (“the applicant”),
on 12 March 2002.
- The
applicant was represented by Mr Z. Gavriloski, a lawyer practising in
Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazarevska
Gerovska.
- On
31 January 2006 the
Court decided to communicate the complaint concerning the length of
two of the sets of proceedings at issue. 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 1936 and lives in Skopje.
1.
Proceedings concerning an order of the Governor of the National Bank
(“the first set of proceedings”)
- The
applicant worked as General Manager of a bank, “K.B.”
(“the bank”).
- On
25 April 1996 the Governor of the National Bank (“the
Governor”) issued an order preventing the applicant from
working as the bank’s General Manager and from exercising other
duties associated with special responsibilities for an indefinite
period of time (“the order”). The order was based on
findings as to the applicant’s unlawful business conduct and
irregularities in the bank’s operation under his management. On
22 May 1996 the Council of the National Bank (“the
Council”) dismissed the applicant’s appeal and confirmed
the order.
- On
12 September 1996 the Supreme Court allowed the applicant’s
appeal on points of law (управен
спор)
submitted on 29 May 1996 and annulled the Council’s decision.
It found that the position of general manager of a bank was not
associated with special responsibilities and accordingly the order
should not have been issued in respect of the applicant.
- On
13 November 1996 the Constitutional Court upheld the applicant’s
actio popularis and declared section 52 § 14 of the
National Bank Act, under which the Governor had been entitled to take
other measures (apart from those explicitly mentioned) if necessary,
unconstitutional.
- On
18 June 1997 the Constitutional Court declared the provisions of the
National Bank Act, in accordance with which the Council decided upon
appeals against the Governor’s decisions, unconstitutional. It
found that the Governor’s participation in and chairing of the
Council when the latter decided against his decisions given at first
instance had been contrary to the constitutional principle of
two-instance decision-making.
-
On 9 June 1997 the plenary session of the Supreme Court (општа
седница)
granted the public prosecutor’s request for the protection of
legality (барање
за заштита на
законитоста)
and quashed the Supreme Court’s decision of 12
September 1996. The court referred in its decision to the National
Assembly’s authentic interpretation of section 70 of the Banks
and Savings Institutions Act (Закон
за банки и
штедилници),
according to which the manager of a bank was to be considered “a
person with special responsibilities”.
-
On 4 February 1998 the Supreme Court, relying on the Constitutional
Court’s decision of 18 June 1997, accepted the applicant’s
appeal and annulled the Council’s decision of 22 May 1996.
-
As the Council allegedly remained inactive, the applicant requested
the Supreme Court to decide his case on the merits instead of the
Council.
-
On 1 September 1998 the Council, sitting without the Governor,
dismissed the applicant’s appeal and upheld the latter’s
decision. On 18 November 1998 the Supreme Court rejected the
applicant’s request to decide his case on the merits instead of
the Council.
-
On 7 July 1999 the Supreme Court granted the applicant’s appeal
and annulled the Council’s decision. It found that the Council
had established the facts incompletely and violated procedural rules.
-
On 26 August 1999 the Council dismissed the applicant’s appeal
again.
-
On 6 September 1999 the applicant lodged a fresh appeal with the
Supreme Court.
-
On 2 December 1999 the Supreme Court allowed the applicant’s
appeal and annulled the Council’s decision of 26 August 1999
and the order of 25 April 1996. It found that the Governor and the
Council had wrongly established that the applicant had abused the
monetary system. On 19 February 2001 the plenary session of the
Supreme Court granted the public prosecutor’s request for the
protection of legality and quashed that decision. It found that the
facts had been re-established without a hearing.
-
On 11 September 2003 the Supreme Court finally dismissed the
applicant’s appeal. It based its decision, inter alia,
on the Banks and Savings Institutions Act of 1993, in accordance with
which the National Bank supervised the lawfulness of a bank’s
operation and accordingly had been authorised to prevent, fully or
partially, persons with special responsibilities from exercising
their duties. It also referred to section 50 § 2 of the National
Bank Act of 1992 and ruled that the latter had lawfully prevented the
applicant from working as General Manager of the bank due to
irregularities in the operation of the bank under his management.
-
On 26 December 2003 the applicant unsuccessfully requested the public
prosecutor to lodge a request with the Supreme Court for the
protection of legality.
2.
Civil proceedings concerning the applicant’s forced retirement
(“the second set of proceedings”)
-
On 25 May 2000 the newly appointed General Manager of the bank
dismissed the applicant as having fulfilled the conditions for his
retirement.
-
On 27 June 2000 the bank’s Executive Board (“the Board”)
dismissed the applicant’s objection.
-
On 4 June 2000 the applicant brought a civil action challenging his
forced retirement. He argued that he had not met the statutory
conditions for entering retirement.
-
On 2 July 2001 the Skopje Court of First Instance granted the
applicant’s claim and annulled the bank’s decisions. It
gave the ruling after it had obtained an expert report concerning the
applicant’s period of employment.
-
On 6 September 2001 the bank appealed. On 6 December 2001 the Skopje
Court of Appeal quashed the lower court’s decision and ordered
a retrial.
-
On 6 December 2002 the Skopje Court of First Instance granted the
applicant’s claim again and annulled the bank’s dismissal
decisions. None of the scheduled hearings were adjourned upon the
applicant’s request.
-
On 13 November 2003 the Skopje Court of Appeal allowed the bank’s
appeal of 4 February 2003 and quashed the lower court’s
decision.
-
On 14 October 2005 the Skopje Court of First Instance dismissed the
applicant’s claim. In the course of those proceedings, that
court sought information from different institutions about the
applicant’s period of employment. On 1 September 2004 it also
appointed an expert to draw up a report in that connection and
ordered those institutions to allow her access to the relevant
documentation. The expert report was produced in March 2005. On 23
March 2006 the Skopje Court of Appeal upheld the first-instance
court’s decision.
-
On 29 May 2006 the applicant lodged an appeal on points of law
(ревизија)
with the Supreme Court. The proceedings are apparently still pending.
3.
Civil proceedings concerning the applicant’s removal from the
position of General Manager of the bank (“the third set of
proceedings”)
-
On 29 July 1996 the Board removed the applicant from the position of
General Manager of the bank. On 9 October 1996 the Board dismissed
the applicant’s objection and terminated his contract with the
bank.
-
On an unspecified date in 1996, the applicant instituted civil
proceedings against the decisions of the Board.
-
On 29 November 1996 the Skopje Court of First Instance partially
allowed the applicant’s claim and annulled the Board’s
decisions. The court dismissed the applicant’s claim concerning
the termination of the contract.
-
On 17 September 1997 the Skopje Court of Appeal granted both parties’
appeals and quashed the lower court’s decision.
-
On 27 April 1998 the Skopje Court of First Instance dismissed the
applicant’s claim concerning his removal and rejected his claim
related to the termination of his contract.
-
On 2 June 1999 the Skopje Court of Appeal ruled partly in favour of
the applicant, namely, it accepted his appeal concerning his removal
and dismissed it in respect of his contract.
-
On 19 January 2000 the Skopje Court of First Instance granted the
applicant’s claim and annulled the Board’s decisions
related to his removal (“the court order”). That decision
was upheld by the Skopje Court of Appeal’s decision of 19 April
2000.
-
After the Board had refused the applicant’s request to
“reinstate his status prior to his removal”
(воспоставување
на правната
состојба како
пред разрешувањето),
the applicant instituted enforcement proceedings claiming
reinstatement and payment of salary arrears.
-
On 27 October 2000 the Skopje Court of First Instance dismissed the
applicant’s request as the court order had not provided for his
reinstatement.
- On
22 January 2001 the Skopje Court of Appeal allowed the applicant’s
appeal and remitted the case for re-examination, arguing that the
court order had had a retrospective effect.
-
On 12 February 2001 the Skopje Court of First Instance dismissed the
applicant’s claims for his reinstatement and for payment of
salary arrears.
-
On 26 April 2001 the Skopje Court of Appeal upheld the lower court’s
decision and dismissed the applicant’s appeal. By a letter of
9 September 2005, the Skopje Court of First Instance stated that
there was no evidence in the file attesting that a copy of that
decision had been served on the applicant or his counsel.
- By
an application of 10 July 2001, the applicant unsuccessfully
requested the public prosecutor to lodge a request with the Supreme
Court for the protection of legality (барање
за заштита на
законитоста).
His application was refused on 31 August 2001. On 12 September 2001
that notification was allegedly served on the applicant.
RELEVANT DOMESTIC LAW
- Section
10 of the Civil Proceedings Act of 1998 (“the 1998 Act”)
provided that it was incumbent upon the courts to undertake to
conduct proceedings without undue delay and economically, and to
inhibit any attempt to abuse the rights afforded to the parties
concerned.
- Section
408 of the 1998 Act provided, inter alia, that the court
should take into consideration the necessity of urgent settlement of
employment disputes.
- Sections
10 § 1 and 405 § of the Civil Proceedings Act of 2005
provide the same.
THE LAW
I. ALLEGED VIOLATION OF THE “REASONABLE TIME
REQUIREMENT” UNDER ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained that the length of the first and second sets of
proceedings had been 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
Government did not raise any objection as to the admissibility of
this complaint. The Court notes that it 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 first set of proceedings
a. The parties’ submissions
47. 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 stated that there had been complex circumstances
related to the case, including amendments to the relevant legislation
and the involvement of the Constitutional Court. As to the conduct of
the domestic courts, the Government argued that they had decided the
applicant’s case with due diligence. They also noted the
excessive workload of the Supreme Court during the period in
question.
- The
applicant submitted that the case had not required consideration of
any complex issue. He stated that the statutory provisions repealed
by the Constitutional Court had subsequently been re-introduced,
which affected the length of the proceedings. He further argued that
court workload could not release the State from the responsibility to
organise an efficient judicial system. Finally, he disagreed with the
argument that the courts had decided his case in due time.
b. The Court’s assessment
- The
Court firstly observes that the Governor issued the order on 25 April
1996. On 29 May 1996, following unsuccessful administrative appeal
proceedings before the Council, the applicant instituted
administrative contentious proceedings before the Supreme Court
challenging the order. However, as noted by the Government, the
period which falls within the Court’s jurisdiction began on 10
April 1997, when recognition by the former Yugoslav Republic of
Macedonia of the right of individual petition took effect (see
Docevski v. the former Yugoslav Republic of Macedonia, no.
66907/01, § 27, 1 March 2007).
- In
assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of the 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 nearly a year. The Supreme Court’s
decision of 12 September 1996 was the last decision given within
this time. The proceedings ended on 11 September 2003 when the
Supreme Court dismissed the applicant’s appeal. The subsequent
unsuccessful proceedings before the public prosecutor are not taken
into consideration for the calculation of the length of the
proceedings, since they did not concern an effective remedy that the
applicant was required to have recourse to (see Lepojić v.
Serbia, no. 13909/05, §§ 53 and 54,
6 November 2007). The proceedings therefore lasted some seven
years and four months, of which just over six years and five 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 Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII; Humen
v. Poland [GC], no 26614/95, § 60,
unreported; Comingersoll S.A. v. Portugal [GC],
no. 35382/97, ECHR 2000-IV; and Philis v. Greece (no.
2), judgment of 27 June 1997, Reports of Judgments and
Decisions 1997-IV, § 35).
- The
Court finds that the case was one of some legal complexity, but that
that cannot alone justify the length of the proceedings. In addition,
the respondent State did not argue that the applicant contributed to
the length of the proceedings.
53. It further notes 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).
54. In this connection, it reiterates that a chronic overload,
as referred to by the Government concerning the proceedings before
the Supreme Court, cannot justify the excessive length of proceedings
(see, mutatis mutandis, Dumanovski v. the former
Yugoslav Republic of Macedonia,
no. 13898/02, § 45, 8 December 2005; Klein v.
Germany, no. 33379/96, § 43, 27 July 2000;
and Pammel v. Germany, judgment of 1 July 1997, Reports
of Judgments and Decisions 1997-IV, § § 69
and 71).
- Finally,
the Court considers that the protracted length of the proceedings was
due to the repeated re-examination of the case (see Ziberi,
cited above, § 46). During the time which falls within its
competence ratione temporis, the case was reconsidered on five
occasions. Even the plenary session of the Supreme Court decided
twice upon the public prosecutor’s request for the protection
of legality. In this connection, the Court notes that repetition of
remittal orders within one set of proceedings discloses a serious
deficiency in the judicial system (see Pavlyulynets v. Ukraine,
no. 70767/01, § 51, 6 September 2005; Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003).
It further observes that it took the Supreme Court nearly two years
and seven months to render its final decision (see paragraphs 17 and
18 above). That period appears excessive given that that court did
not take any evidence or perform any procedural activity (see Lickov
v. the former Yugoslav Republic of Macedonia, no. 38202/02,
§ 30, 28 September 2006).
2. The second set of proceedings
a. The parties’ submissions
-
The Government submitted that the case had been complex, given that
extensive evidence, including expert reports and internal regulations
of the bank, had had to be examined to establish the facts. The fact
that the case concerned a labour dispute which, in itself, required
an urgent decision, added to its complexity.
-
They further maintained that the applicant had contributed to the
length of the proceedings given his alleged failure to submit
evidence required by the first-instance court. The fact that he had
availed himself of the available remedies had added to the length of
the proceedings.
- The
applicant argued that he had not requested any expert examinations,
nor had he objected to those carried out in the course of the
proceedings: he could not accordingly be held responsible for the
time that elapsed on account of those examinations. He further
disputed the Government’s allegation that he had failed to
respond to the court’s orders as unsubstantiated. Moreover, he
argued that there had been long delays between the hearings. Finally,
he averred that the domestic courts had not displayed the requisite
vigilance, given the urgent nature of the dispute.
b. The Court’s assessment
-
The Court notes that the proceedings started on 4 June 2000 when the
applicant brought his civil action for annulment of his dismissal.
The impugned proceedings appear to be still pending, given that no
evidence was provided that the Supreme Court has decided upon the
applicant’s appeal on points of law of 29 May 2006. They
have already lasted for nearly eight years for two levels of
jurisdiction.
-
The Court does not consider that the case required examination of
complex issues of fact and law.
-
It further finds that, in the absence of any evidence to the
contrary, there were no delays imputable to the applicant. In this
latter context, it accepts his arguments concerning the expert
examinations and submission of required evidence. In this connection,
the Court notes that the principal responsibility for the delay
caused by the expert examinations falls ultimately on the State. In
addition, the expert was working in the context of judicial
proceedings, supervised by a judge, who remained responsible for the
preparation and speedy conduct of the trial (see Stojanov v. the
former Yugoslav Republic of Macedonia, no. 34215/02, § 60,
31 May 2007). Finally, 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 Arsov v. the
former Yugoslav Republic of Macedonia, no. 44208/02, § 42,
19 October 2006).
- Having
regard to the criteria described in paragraph 51 above, the Court
finds that the overall length of the proceedings was excessive. In
that connection, it considers it noteworthy that the domestic law
(see the Civil Proceedings Acts above) and the Court’s
jurisprudence (see Stojanov v. the former Yugoslav Republic of
Macedonia, cited above, § 61, 31 May 2007)
required employment-related disputes to be conducted with a special
diligence. The case was remitted for re-examination twice and has
been awaiting consideration by the Supreme Court since 29 May 2006.
3. Conclusion
-
Having regard to its case-law on the subject, the Court considers
that the length of each of the two sets of proceedings described
above has failed to satisfy the reasonable time requirement. There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
II.
OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Concerning
the first set of proceedings, the applicant complained under Article
6 of the Convention that they had been unfair and that the Council
had lacked impartiality, since the Governor had decided on the order
at first and second instance (as a member of the Council). In this
latter connection, he also relied on Article 13 and Article 2 of
Protocol No. 7 of the Convention. He further complained that the
Supreme Court’s decision of 2 December 1999 had been given
without a hearing. Relying on Article 7 of the Convention, he also
complained that the order had been issued for acts which had not
constituted a criminal offence at the time when they had allegedly
been committed.
- He
complained under Article 6 of the Convention that the third
proceedings had lasted an unreasonably long time.
- Finally,
he alleged a violation of Article 4 of Protocol No.7 in that he had
been repeatedly punished for the same offence, since the order had
been re-issued.
- The
Court has examined these 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.
III. 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 159,898 euros (EUR) in respect of pecuniary damage
for salary arrears. He did not claim any compensation in respect of
non-pecuniary damage, apart from an apology by those involved in his
case.
- The
Government did not express an opinion on the matter.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
further does not award any non-pecuniary damage given that the
applicant did not make such a claim.
B. Costs and expenses
- The
applicant claimed EUR 1,563 for the costs and expenses incurred in
the second set of proceedings. He further claimed EUR 1,000 for the
costs and expenses incurred in the proceedings before the Court.
These included the lawyer’s fees for 25 hours of legal work. He
did not produce any supporting document.
- The
Government did not express an opinion on the matter.
- Concerning
the applicant’s request for reimbursement of the costs incurred
in the second proceedings, 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; and Van
de Hurk v. the Netherlands, judgment of 19 April 1994, Series A
no. 288, § 66). As such costs had not been incurred in
order to seek prevention and redress of the alleged violation
complained of through the domestic legal order, 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 only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that
the applicant did not provide any supporting documents concerning the
legal fees. It therefore makes no award in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the first and second sets of proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 19 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
