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FIFTH
SECTION
CASE OF SAVOV AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 12582/03)
JUDGMENT
STRASBOURG
25
September 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 Savov and Others 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 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12582/03) 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 three Macedonian
nationals, Mr Angelco Savov (“the first applicant”), Mrs
Ristika Savova (“the second applicant”) and Mr Vasil
Savov (“the third applicant”), on 24 March 2003. The
second and third applicants are the first applicant’s parents.
- The
applicants were 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
6 September 2006 the
Court decided to communicate the complaint concerning the length of
the civil and enforcement proceedings, taken together, 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
applicants were born in 1971, 1947 and 1938 respectively and live in
Štip.
- On
6 February 1996 the applicants brought an action against Mr G., a
juvenile at that time, and Ms M. and Mr B., Mr G.’s parents
(“the defendants”), claiming compensation for the
pecuniary and non-pecuniary damage resulting from injuries that the
first applicant had sustained in a fight with Mr G. In the course of
the proceedings, the applicants increased their initial claim on
account of injuries that were established subsequently.
- Five
hearings were scheduled between 25 September and 9 December 1996,
three of which were adjourned because of expert examinations. On the
latter date the Štip Court of First Instance ruled partly in
favour of the applicants, awarding them less compensation than they
had sought. That judgment was quashed by the Štip Court of
Appeal in a decision of 18 June 1997 following appeals by
both parties.
- On
15 October 1997 the Štip Court of First Instance partly
granted the applicants’ claims and ordered the defendants
jointly to reimburse the second and third applicants for the material
loss, and to cover the non-pecuniary damage sustained by the first
applicant.
- On
25 February 1998 the Štip Court of Appeal, on appeal by the
applicants, quashed the part of the lower court’s decision
relating to the first applicant’s claim for loss of income. It
upheld the remainder of that decision.
- On
25 May 1998 the applicants lodged an appeal on points of law
(ревизија)
with the Supreme Court. On 22 May 1999 the first applicant
unsuccessfully requested that the case be given priority treatment.
- On
11 January 2001 the Supreme Court partly allowed the applicants’
appeal and increased the award in respect of non-pecuniary damage.
The applicants were served with that decision on 23 March 2001.
- On
17 April 2001 the applicants requested enforcement of the above
decisions before the Štip Court of First Instance (“the
enforcement court”). They proposed the following means of
enforcement: seizure of the defendants’ monetary funds or an
inventory, valuation and sale of their movable and immovable assets.
They also requested the court to prevent Mr B. from selling or
encumbering a flat (“the flat”) which he allegedly
possessed. The enforcement court granted those requests in a decision
of 16 May 2001 (“the order”). It appears that the
applicants did not pay the court fees in time and the court did not
decide upon their request for an injunction in respect of the flat.
- An
on-site examination of the flat was scheduled for 21 March 2002.
However, a hearing was held in the court building instead. On that
occasion, the applicants requested the court to obtain evidence about
the defendants’ immovable assets.
- On
21 June 2002 the applicants requested the court, in the alternative,
to order an inventory and public sale of a house (“the house”)
allegedly owned by Mr B. Their request for enforcement as regards the
flat remained unaffected. The defendants argued that the house had
not been constructed and that Mr B. did not have title to the flat.
- On
19 September 2002 the court inspected the site and established the
existence of the house. It further ordered the applicants to provide
evidence that Mr B. had title to the house.
- On
15 November 2002 the applicants requested the continuation of the
enforcement proceedings in respect of the flat and the house. The
defendants contested that request, stating that they did not have
title to the assets in question. Since the flat had been subjected to
a charging order (a mortgage) by a bank, the applicants requested
that their claim be satisfied after the bank’s loan had been
returned from the proceeds of the sale. The bank requested that,
should the court sell the flat, which was allegedly socially owned,
the loan arrangements be settled so that the charging order would be
erased from the official records.
- On
17 June 2003 the applicants requested the enforcement court to
expedite the enforcement.
- At
a hearing on 11 July 2003, the applicants submitted a certificate,
issued by the local authorities in 1981, authorising Mr B. to
construct the house. The defendants disputed that that certificate
could serve as proof of possession and stated that the house had been
transferred, on the basis of a gift contract, into the possession of
Mr B.’s daughter (Mrs B.N.).
- On
1 September 2003 the applicants requested the enforcement court to
prevent Mr B. from selling the house until the enforcement was
concluded.
- On
11 and 12 November 2003 the enforcement court visited the site, but
it did not proceed with the enforcement given that the flat was
locked. On the latter date, the applicants requested the court to
obtain information as to whether the defendants possessed a vehicle.
- On
26 December 2003 the court again went into the flat and drew up an
inventory of movable items.
- In
separate proceedings instituted by the first applicant, on
6 July 2004 the Štip Court of First Instance ruled
that the gift contract (see paragraph 17 above) of 28 May 2001 by
which Mr B. had transferred possession of the house to Mrs B.N. was
devoid of any legal effect up to the amount sufficient to satisfy the
first applicant’s claims (non-pecuniary damage and trial costs)
as established in the substantive proceedings (see paragraphs 7-10
above). It further ordered Mrs B.N. to allow the enforcement in
respect of the house that Mr B. had transferred to her on the basis
of the gift contract.
- On
21 April 2005 the Štip Court of Appeal dismissed appeals by
Mr B. and Mrs B.N. and upheld the lower court’s decision.
- On
6 September 2005 the enforcement court resumed the proceedings by
ordering an on-site examination of the house. The on-site visit took
place on 20 September 2005. The house was locked, but the court
ordered the expert to value it. It also issued an injunction
preventing the house from being sold.
- In
another set of proceedings, Mrs B.N. and Mr G.N., her husband,
requested the Štip Court of First Instance to recognise that
they had title to the house. On 5 October 2005 the court allowed that
claim and held that the claimants had gained possession of the house
as a result of having constructed it with their own assets. On the
same date, that decision became final given that Mr B. and Ms M. had
waived their right to appeal.
- On
20 November 2005 the enforcement court refused a request by the
defendants for postponement of the enforcement, submitted on account
of the civil proceedings described in the preceding paragraph.
Referring to the proceedings described in paragraph 21 above, the
court held that separate proceedings concerning the same property,
but on a different ground, would only delay the enforcement of the
order of 16 May 2001.
- On
16 March 2006 the enforcement court ordered the applicants to propose
an alternative means of enforcement since the order could not be
enforced in respect of the house given that, according to the final
decision of 5 October 2005 (see paragraph 24 above), it was no longer
in the defendants’ possession.
- On
14 September 2006 the applicants requested the enforcement court to
continue the proceedings concerning the flat. They also requested the
court to order Mr B. not to dispose of the flat.
- On
10 October 2007 the enforcement court called the applicants to
propose an alternative means and assets of enforcement under threat
of suspension of the proceedings. It stated that the order could not
be enforced in respect of the movable assets found in the flat (see
paragraph 20 above) since they had been excluded from execution; the
house had no longer been in the defendants’ possession and the
flat, still subjected to a charging order, could not be sold under
the Law on socially-owned flats of 2004. The applicants’
objections to this decision were unsuccessful.
- On
15 February 2008 the enforcement court, reiterating its findings
stated above, stayed (запира)
the proceedings due to a lack of funds on the defendants’
part. On 20 May 2008 the Štip Court of Appeal accepted the
applicants’ appeal and remitted the case for a renewed
consideration. It held that the lower court’s findings about
the lack of funds had not been sufficiently reasoned and
substantiated. It contradicted the fact that the defendants had the
title of the flat under a sales contract of 1993. It therefore
instructed the enforcement court to reassess the evidence so as to
establish whether the enforcement could continue in respect of the
flat.
- In
the course of the enforcement proceedings, the defendants proposed
enforcement by means of a standing authority for deduction of funds
from Mr G.’s monthly salary. The applicants refused that
proposal given the high amount of their claim.
B. Relevant domestic law
1. Enforcement Proceedings Act
(Закон
за извршната
постaпка)
- Under
section 2 of the Enforcement Proceedings Act
(“the Act”), as in force at that time,
enforcement proceedings were launched upon the creditor’s
request.
- Section
27 of the Act provided for the following means of enforcing judgment
debts: (i) sale of movable assets, (ii) sale of immovable assets,
(iii) transfer of a pecuniary claim, (iv) encashment of other
proprietary rights, and (v) transfer of funds from an account managed
by the Public Payment Bureau.
- In
accordance with section 29 of the Act, the courts were required to
enforce judgment debts by the means and in relation to the assets
specified in the request for enforcement.
- Section
141 of the Act provided that enforcement in respect of immovable
assets was effected by recording the order in the register, obtaining
a valuation of the property, selling it and settling the creditors’
claims from the proceeds of the sale.
- Section
142(1) of the Act provided that, inter alia, in support of a
request for a charging order in respect of immovable assets, the
creditor was to submit an extract from the public records as evidence
that the debtor had title to the assets in question.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the civil and enforcement
proceedings, taken together, 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 this 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 submitted that the substantive and enforcement proceedings
should be considered as two separate sets. As to the proceedings on
the merits, they argued that the case had raised complex issues of
fact which had required expert examinations. They further maintained
that the courts had considered the applicants’ case in a timely
manner. It was only the proceedings before the Supreme Court which
had lasted longer, but that had been due to the complexity of the
case. Finally, they stated that some delays had been attributable to
the applicants on account of their requests for their initial claim
to be increased and for an alternative expert examination to be
conducted.
- As
regards the enforcement proceedings, the Government submitted that
the lack of assets on the part of the defendants had affected the
enforcement of the applicants’ claim. A charging order
(хипотека)
had been made in respect of the flat and the defendants had not had
title to the house (see paragraph 24 above). It remained up to the
applicants, as creditors, to specify alternative means of enforcement
concerning assets in the defendants’ possession.
- They
further maintained that the applicants had contributed to the length
of the enforcement proceedings by having refused to accept the means
of enforcement proposed by the defendants (see paragraph 24 above).
Their failure to pay the court fees in time had also added to the
length of the proceedings (see paragraph 11 above).
- Finally,
they concluded that the national courts had conducted those
proceedings with due diligence and had scheduled on-site examinations
regularly. The proceedings remained open with the purpose of enabling
the applicants to enforce their claim once funds became available.
They also stated that a new Enforcement Act of 2005 provided for
measures that would remedy the systematic flaws and delays produced
by the Act.
- The
applicants contested the Government’s arguments concerning the
proceedings on the merits and denied that any delays had been
attributable to them.
- They
further submitted that the enforcement proceedings were of an urgent
nature. Furthermore, the subject-matter of the case required special
diligence on the part of the courts. They also maintained that the
flat had been entered in the public records in the name of the
defendants, who had meanwhile repaid the loan to the bank. In
addition, the enforcement court should have sold the flat
irrespective of the loan given that the bank had not opposed its sale
(see paragraph 15 above). Concerning the Government’s argument
about their failure to pay the court fees, they maintained that they
had lacked funds and that accordingly, they should have been exempted
from paying them. The means of enforcement proposed by the defendants
(see paragraph 24 above) would not have been efficient given that Mr
G. did not have any earnings as insolvency proceedings had been
opened in 2005 in respect of his employer.
2. The Court’s assessment
- The
Court notes that the applicants complained that the reasonable-time
requirement had been violated concerning both sets of proceedings,
civil and enforcement, taken as a whole. In that connection, it
refers to its case law to the effect that enforcement proceedings may
be taken into account together with the prior civil suit when
assessing compliance with the reasonable-time requirement contained
in Article 6 § 1 of the Convention (see, for
example, Di Pede v. Italy and Zappia v. Italy,
judgments of 26 September 1996, Reports of Judgments and
Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp.
1410-1411, §§ 16-20, respectively).
- As to the present case, the Court notes that the
proceedings started on 6 February 1996, when the applicants brought
their claim before the then Štip Municipal Court. However, 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 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 a year and two months for one level of
jurisdiction. The relevant period has not ended yet as the
enforcement proceedings are still pending.
- 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 applicants
and the relevant authorities and what was at stake for the applicants
in the dispute (see Markoski v. the former Yugoslav
Republic of Macedonia, no. 22928/03, § 32,
2 November 2006).
- The
Court considers that the proceedings were not of a particularly
complex nature. Some complexity arose from the need to request expert
reports. However, the principal responsibility for a delay caused by
expert examinations lies ultimately with the State (see Stojanov
v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 60,
31 May 2007).
- The
Court cannot discern any delays attributable to the applicants, apart
from their failure to pay the court fees in time (see paragraphs 11,
40 and 43 above) and to propose alternative means of enforcement as
requested by the enforcement court (see paragraphs 26 and 27 above).
- As
to the substantive proceedings, the Court notes that they ended on 23
March 2001, when the Supreme Court’s decision of 11 January
2001 was served on the applicants. It considers that, while the
first- and second-instance courts decided the applicants’ case
with reasonable expedition, the proceedings before the Supreme Court
were unjustifiably lengthy. The Court observes that it took nearly
two years and seven months for that court to decide upon the
applicants’ appeal on points of law. During that time, the
Supreme Court only reviewed the case on points of law and did not
obtain any evidence or take any procedural steps (see Mihajloski
v. the former Yugoslav Republic of Macedonia, no. 44221/02, § 38,
31 May 2007). That period cannot be regarded as reasonable given
that particular diligence is necessary in disputes concerning
determination of compensation in personal-injury cases (see Dika
v. the former Yugoslav Republic of Macedonia, no. 13270/02, § 59,
31 May 2007).
- As
regards the enforcement proceedings, the Court notes that they
started on 17 April 2001 and that the final judgment has not yet been
enforced after over seven years.
- The
Court considers that the enforcement court did not display the
requisite vigilance when conducting the enforcement proceedings. Five
on-site examinations of the defendants’ immovable assets were
ineffective (see paragraphs 12, 14, 19, 20 and 23 above). It also
appears that there were some periods of total inactivity on the part
of the court: eight months between 15 November 2002 and 11 July 2003
(see paragraphs 15 and 17 above) and five months between 5 October
2005 and 16 March 2006 (see paragraphs 24 and 26 above). It is
further noteworthy that the enforcement proceedings were dormant for
nearly two years (see paragraphs 20 and 23 above). It appears that
the enforcement court awaited the outcome of the substantive
proceedings in which the first applicant had successfully challenged
the validity of the gift contract.
- In
that connection, the Court reiterates that it might be reasonable for
national courts to await under certain circumstances the outcome of
parallel proceedings as a measure of procedural efficiency. That
decision must be reasonable having regard to the special
circumstances of the case (see, mutatis mutandis, König v.
Germany, judgment of 28 June 1978, Series A no. 27, § 110;
Boddaert v. Belgium, judgment of 12 October 1992,
Series A no. 235-D, § 39; and Pafitis and Others v.
Greece, judgment of 26 February 1998, Reports 1998-I,
§ 97). The Court observes that, in the present case, the
enforcement was not formally stayed or suspended pending the outcome
of those proceedings. Finally, it further took over a year for the
enforcement court to call the applicants to come forward with another
means and assets of enforcement (see paragraph 28 above).
- In
addition, the Government did not present any evidence to support
their argument that the applicants’ claim remained unenforced
owing to a lack of funds on the defendants’ part. The Court of
Appeal’s decision of 20 May 2008 (see paragraph 29 above)
confirms that findings. The applicants’ refusal to accept the
charging order in relation to Mr G.’s salary as a means of
enforcement cannot be held against them given Mr G.’s lack of
income (see paragraph 43 above).
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, the Court considers that the
length of the proceedings complained of 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
- The
applicants further complained under Article 1 of Protocol No.1 that,
because of the length of the enforcement proceedings, they had not
been able to recover their claim. They also complained about the
enforcement court’s failure to decide upon their request to
order the defendants not to dispose of the flat.
- The
Court notes that the enforcement proceedings were brought against
private individuals. In that connection, it reiterates that the
State’s responsibility for enforcement of a judgment against a
private party extends no further than the involvement of State bodies
in the enforcement procedures (see Shestakov v. Russia (dec.),
no. 48757/99, 18 June 2002, and Kravchuk v. Russia (dec.), no.
72749/01, 1 February 2005).
- For
the reasons detailed in paragraph 55 above, the Court considers that
the non-enforcement by the national courts of the applicants’
claim in the present case does not amount to an interference with
their right to the peaceful enjoyment of possessions within the
meaning of Article 1 of Protocol No. 1. In addition, the enforcement
court’s failure to decide upon the applicants’
application for an injunction did not cause irreversible prejudice to
their interests as no evidence was produced that the defendants
had disposed of that flat, which might to a substantial extent have
drained the final outcome of the main proceedings of its
significance.
- It
follows that this complaint 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
applicants claimed 200,000 Macedonian denars plus interest in respect
of pecuniary damage and 50,000 euros (EUR) for non-pecuniary damage
concerning their complaint under Article 6 of the Convention. As
regards their complaints under Article 1 of Protocol No. 1, they also
sought reimbursement of the amounts awarded in the substantive
proceedings.
- The
Government contested those claims as unsubstantiated. They further
maintained that there was no causal link between the pecuniary damage
claimed and the alleged violation.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
Given its findings concerning the applicants’ complaints under
Article 1 of Protocol No. 1, it also dismisses the claim under that
head. On the other hand, the Court considers that the applicants must
have sustained non-pecuniary damage. Ruling on an equitable basis, it
awards them EUR 2, 000 under that head.
B. Costs and expenses
- The
applicants also claimed EUR 5,000 for costs and expenses, without
specifying whether they had been incurred before the domestic courts
or before the Court. They did not provide any supporting documents.
- 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 v. the former Yugoslav Republic of
Macedonia, no. 44353/02, § 62, 15 June 2006; Arvelakis
v. Greece, no. 41354/98, § 34, 12 April 2001;
and Nikolova v. Bulgaria [GC], no. 31195/96, § 79,
ECHR 1999-II). 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 claims. Accordingly, the
Court does not award any sum under this head (see Parizov v. the
former Yugoslav Republic of Macedonia, no. 14258/03, § 72,
7 February 2008).
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 applicants, 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), plus any tax that may be chargeable to the
applicants, 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 25 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
